{ "id": 3033096, "name": "In re ESTATE OF DAWN MARIE EDWARDS, a/k/a Dawn Marie Evink, a Minor, Deceased.-(JERRY EVINK et al., Petitioners-Appellants, v. DAWN MARIE EDWARDS, by Mary Lou Edwards Gregory, her Mother and Next Friend, et al., Defendants-Appellees.)", "name_abbreviation": "Evink v. Edwards", "decision_date": "1982-05-20", "docket_number": "No. 81-702", "first_page": "635", "last_page": "639", "citations": [ { "type": "official", "cite": "106 Ill. App. 3d 635" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "175 F.2d 510", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1173776 ], "pin_cites": [ { "page": "512" } ], "opinion_index": 0, "case_paths": [ "/f2d/175/0510-01" ] }, { "cite": "27 S.W.2d 641", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10283928 ], "year": 1949, "pin_cites": [ { "page": "642" } ], "opinion_index": 0, "case_paths": [ "/sw2d/27/0641-01" ] }, { "cite": "53 N.E. 1092", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1930, "opinion_index": 0 }, { "cite": "22 Ind. App. 459", "category": "reporters:state", "reporter": "Ind. App.", "case_ids": [ 430165 ], "year": 1930, "opinion_index": 0, "case_paths": [ "/ind-app/22/0459-01" ] }, { "cite": "78 S.W.2d 641", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10252721 ], "year": 1945, "pin_cites": [ { "page": "642-44" } ], "opinion_index": 0, "case_paths": [ "/sw2d/78/0641-01" ] }, { "cite": "137 Vt. 464", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 4713842 ], "weight": 2, "year": 1935, "pin_cites": [ { "page": "632" } ], "opinion_index": 0, "case_paths": [ "/vt/137/0464-01" ] }, { "cite": "34 S.E.2d 623", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "624" }, { "page": "624" } ], "opinion_index": 0 }, { "cite": "72 Ga. App. 638", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 1528374 ], "pin_cites": [ { "page": "639" } ], "opinion_index": 0, "case_paths": [ "/ga-app/72/0638-01" ] }, { "cite": "115 Cal. Rptr. 329", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1945, "pin_cites": [ { "page": "331" } ], "opinion_index": 0 }, { "cite": "524 P.2d 801", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1945, "pin_cites": [ { "page": "803" } ], "opinion_index": 0 }, { "cite": "12 Cal.3d 115", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 2315557 ], "year": 1945, "pin_cites": [ { "page": "119" } ], "opinion_index": 0, "case_paths": [ "/cal-3d/12/0115-01" ] }, { "cite": "404 Ill. 307", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5307678 ], "pin_cites": [ { "page": "310" } ], "opinion_index": 0, "case_paths": [ "/ill/404/0307-01" ] }, { "cite": "342 Ill. App. 673", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5063729 ], "pin_cites": [ { "page": "680" } ], "opinion_index": 0, "case_paths": [ "/ill-app/342/0673-01" ] }, { "cite": "309 Ill. 363", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5104580 ], "year": 1951, "pin_cites": [ { "page": "371" } ], "opinion_index": 0, "case_paths": [ "/ill/309/0363-01" ] }, { "cite": "87 Ill. App. 3d 338", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3180330 ], "pin_cites": [ { "page": "344" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/87/0338-01" ] }, { "cite": "5 Ill. 2d 328", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2703615 ], "year": 1958, "pin_cites": [ { "page": "331" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/5/0328-01" ] }, { "cite": "589 S.W.2d 862", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9953341 ], "year": 1980, "pin_cites": [ { "page": "865" } ], "opinion_index": 0, "case_paths": [ "/sw2d/589/0862-01" ] }, { "cite": "126 Cal.Rptr. 38", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1979, "pin_cites": [ { "page": "41-42" } ], "opinion_index": 0 }, { "cite": "53 Cal. App. 3d 837", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 4486110 ], "year": 1979, "pin_cites": [ { "page": "842-43" } ], "opinion_index": 0, "case_paths": [ "/cal-app-3d/53/0837-01" ] }, { "cite": "97 A.L.R.3d 347", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "353" }, { "page": "375-382" } ], "opinion_index": 0 }, { "cite": "516 S.W.2d 561", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10140205 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "564" }, { "page": "567" } ], "opinion_index": 0, "case_paths": [ "/sw2d/516/0561-01" ] }, { "cite": "570 S.W.2d 883", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9955533 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/sw2d/570/0883-01" ] }, { "cite": "549 S.W.2d 760", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9953322 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "763" }, { "page": "762" } ], "opinion_index": 0, "case_paths": [ "/sw2d/549/0760-01" ] }, { "cite": "86 Ill. 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App. 3d", "case_ids": [ 3188071 ], "pin_cites": [ { "page": "5" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/86/0001-01" ] }, { "cite": "14 Ill. 2d 449", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2770841 ], "weight": 3, "pin_cites": [ { "page": "452" }, { "page": "453" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/14/0449-01" ] }, { "cite": "303 Ill. 191", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5005766 ], "pin_cites": [ { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/ill/303/0191-01" ] } ], "analysis": { "cardinality": 619, "char_count": 9424, "ocr_confidence": 0.911, "pagerank": { "raw": 1.9308191248765143e-07, "percentile": 0.7341989822572668 }, "sha256": "b26795a02776f26740e87955b9f76051cba42b3cf656e02369c2625a2c6e6372", "simhash": "1:49d0837e20b59678", "word_count": 1592 }, "last_updated": "2023-07-14T19:02:18.366242+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re ESTATE OF DAWN MARIE EDWARDS, a/k/a Dawn Marie Evink, a Minor, Deceased.\u2014(JERRY EVINK et al., Petitioners-Appellants, v. DAWN MARIE EDWARDS, by Mary Lou Edwards Gregory, her Mother and Next Friend, et al., Defendants-Appellees.)" ], "opinions": [ { "text": "PRESIDING JUSTICE SEIDENFELD\ndelivered the opinion of the court:\nWhether foster parents are entitled to bring an action for wrongful death of a child on theories of an agreement to adopt or \u201cequitable adoption\u201d is the question before us.\nDawn Marie Edwards, then 13, was struck by a car and killed on November 25,1980. Jerry Evink filed a petition seeking to open a probate estate and to be appointed her administrator in order to file a wrongful death action, alleging that he and his wife, Bonnie Evink, stood in the place of the natural parents of the decedent. The Evinks filed an additional petition seeking to establish an \u201cequitable adoption,\u201d in which they alleged that the deceased was born on October 8, 1967; they obtained permanent custody of the child on October 11, 1967; the child resided with them until her death; they had agreed to adopt the child and the natural mother Mary Lou Edwards Gregory had consented to said adoption; and for all of the natural life of the child they treated the child as their natural child. A consent of the natural mother dated subsequent to the death of the child was attached. It was further alleged that the natural father, James Poe, deserted the child, was unknown to the child and furnished no support.\nThe State\u2019s Attorney, Mary Lou Edwards Gregory, and James Poe were made parties. The natural mother filed her appearance but has not otherwise participated in the proceedings. James Poe filed a motion to dismiss principally on the bases that the Adoption Act does not permit adoption of a deceased person, that the posthumous consent is an invalid attempt to assign a cause of action, and that the allegation referencing the mother\u2019s original consent said to be three days after the birth of the child was therefore within 72 hours of the birth and invalid under the Adoption Act. Ill. Rev. Stat. 1979, ch. 40, pars. 1511(B), 1512(H).\nThe trial court appointed Jerry Evink administrator but dismissed the petition to adopt. The Evinks appeal.\nBecause the common law did not provide for the adoption of children, adoption rights and duties are determined by statute. (McNamara v. McNamara (1922), 303 Ill. 191,196.) The petition does not allege that the provisions of the Adoption Act were complied with during the lifetime of Dawn. The petitioners allege that they have a \u201cstatutory and equitable right to be declared the adoptive parents of said child.\u201d However, as there were no statutory adoption proceedings during Dawn\u2019s lifetime, a statutory adoption cannot occur now, since the relevant parts of the Adoption Act contemplate adoption of a living person.\nThe definition of a \u201cchild\u201d subject to adoption means a \u201cperson.\u201d (Ill. Rev. Stat. 1979, ch. 40, par. 1501(A).) The provisions of the Adoption Act furnish the clear implication that only a living person may be the subject of adoption proceedings. (Ill. Rev. Stat. 1979, ch. 40, par. 1501 et seq.) The \u201cperson\u201d sought to be adopted must be made a party. (Ill. Rev. Stat. 1979, ch. 40, par. 1510.) The only reference to a deceased child is section 14a, which provides that after the court has acquired jurisdiction over \u201cthe person of any child,\u201d and the child dies before the entry of the final order, the court may permit the matter to proceed to final order \u201cto enable the child to have the intended name by adoption.\u201d Ill. Rev. Stat. 1979, ch. 40, par. 1518.\nClearly there has been no statutory adoption. The petitioners\u2019 principal argument, however, is based on the theory referred to in the petition as \u201cequitable adoption.\u201d In Illinois the cases in the area of failure to follow the statute for adoption have proceeded on a contract theory; holding that an oral contract to adopt may be shown, but that evidence supporting the contract must be \u201cclear and conclusive of the existence and terms of the contract, leaving no room for reasonable doubt.\u201d (Monahan v. Monahan (1958), 14 Ill. 2d 449, 452.) And the evidence must not be \u201creadily harmonizable with any other theory\u201d than the intent to adopt. 14 Ill. 2d 449, 453.\nIllinois has not expressly recognized the theory of \u201cequitable adoption.\u201d (See In re Estate of Staehli (1980), 86 Ill. App. 3d 1,5.) In a number of jurisdictions, however, estoppel or quasi-contract considerations have been applied to establish an adoption where there has been clear proof of a contract, express or implied, between the child\u2019s natural parents or legal custodians and the foster parents, reliance upon the parent-child relationship, and performance of obligations under the de facto relationship. (See Adler v. Moran (Tex. Civ. App. 1977), 549 S.W.2d 760,763, revd on other grounds (1978), 570 S.W.2d 883; Mize v. Sims (Mo. App. 1974), 516 S.W.2d 561, 564; Annot., 97 A.L.R.3d 347, 353 (1980).) In a great majority of the cases the child is claiming various rights said to arise from the relationship of an adopted child and the adopting parent has been held estopped from denying that he assumed the obligation. See Mize v. Sims (Mo. App. 1974), 516 S.W.2d 561, 567; Adler v. Moran (Tex. Civ. App. 1977), 549 S.W.2d 760, 762; In re Marriage of Valle (1975), 53 Cal. App. 3d 837, 842-43, 126 Cal.Rptr. 38, 41-42; Moore v. Douglas (Tex. Civ. App. 1979), 589 S.W.2d 862, 865; Annot., 97 A.L.R.3d 347, 375-382 (1980).\nIt is also noteworthy that the only Illinois cases which have enforced adoption contracts have done so where the child seeks to inherit from a foster parent. Dixon National Bank v. Neal (1955), 5 Ill. 2d 328, 331, and cases there cited; Monahan v. Monahan (1958), 14 Ill. 2d 449.\nWe apply the accepted principles in ruling upon a motion to dismiss, that well-pleaded facts and reasonable inferences in Evinks\u2019 petition are taken as true, with the allegations viewed in the light most favorable to them. (E.g., Album Graphics, Inc. v. Beatrice Foods Co. (1980), 87 Ill. App. 3d 338, 344.) The Evinks alleged that Dawn was in their custody from three days after her birth until she died, they and Dawn\u2019s natural mother agreed that the Evinks would adopt Dawn, Poe deserted Dawn, Dawn used the surname \u201cEvink\u201d for all purposes, and the Evinks assumed full responsibility for Dawn, supported her financially, and cared for her as a natural child, although there were no statutory adoption proceedings. While these allegations may be sufficient to allege a contract to adopt, the allegations taken as true with the reasonable inferences, do not establish a cause of action in the Evinks to sue for the wrongful death of Dawn.\nDamages arising from wrongful death in Illinois are recoverable exclusively for the benefit of the decedent\u2019s surviving spouse and \u201cnext of kin.\u201d (Ill. Rev. Stat. 1979, ch. 70, par. 2.) Next of kin includes adoptive parents, since an adoptive child stands in the same relation to the adoptive parent as a natural child. Hopkins v. Gifford (1923), 309 Ill. 363, 371; McDavid v. Fiscar (1951), 342 Ill. App. 673, 680.\nBecause there was no cause of action for wrongful death at common law, the wrongful death statute is the source of determining who shall sue and under what conditions; and the statute is to be strictly construed. (Wilson v. Tromly (1949), 404 Ill. 307, 310.) Recovery is limited solely to those beneficiaries clearly described in the statute. (Steed v. Imperial Airlines (1974), 12 Cal.3d 115, 119, 524 P.2d 801, 803,115 Cal. Rptr. 329, 331.) Statutes providing recovery for wrongful death, strictly construed, have been held to exclude persons standing only in a quasi-parental relationship. See Smith v. Jones (1945), 72 Ga. App. 638, 639, 34 S.E.2d 623, 624.\nProof of the elements of an oral contract to adopt merely permits the enforcement of contract rights; it does not create a parent-child relationship or afford all of the legal consequences of a statutory adoption. When the contract has not been performed, in fact becomes impossible to perform because of the death of the child, the foster parent does not come within the term \u201cnext of kin\u201d in the wrongful death statute. See Whitchurch v. Perry (1979), 137 Vt. 464, 408 A.2d 627, 632; Boudreaux v. Texas & N. O. R. Co. (Tex . Civ. App. 1935), 78 S.W.2d 641, 642-44; Smith v. Jones (Ga. App. 1945), 34 S.E.2d 623,624; Citizens\u2019 St. R. Co. v. Cooper (1899), 22 Ind. App. 459, 53 N.E. 1092; Perez v. Central Power & Light Co. (Tex. Civ. App. 1930), 27 S.W.2d 641, 642; Olson v. United States (8th Cir. 1949), 175 F.2d 510, 512 (applying Utah law).\nWe are sympathetic to the concern of the petitioners that James Poe, who clearly abandoned the child, should here be the objector. There are implications from his conduct that are not savory. However, he was made a defendant with his consequent right to plead; and, in any event, we would be required to resolve the legal issues in the same way.\nThe judgment of the trial court which dismissed plaintiffs\u2019 petition for failure to state a cause of action is therefore affirmed.\nAffirmed.\nHOPE and VAN DEUSEN, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE SEIDENFELD" } ], "attorneys": [ "Bernard P. Reese, Jr., of Reese, Reese and Bagley, of Rockford, for appellants.", "Brassfield, Cowan & Howard, of Rockford (Eugene E. Brassfield and Frederic T. Brandt, of counsel), for appellees." ], "corrections": "", "head_matter": "In re ESTATE OF DAWN MARIE EDWARDS, a/k/a Dawn Marie Evink, a Minor, Deceased.\u2014(JERRY EVINK et al., Petitioners-Appellants, v. DAWN MARIE EDWARDS, by Mary Lou Edwards Gregory, her Mother and Next Friend, et al., Defendants-Appellees.)\nSecond District\nNo. 81-702\nOpinion filed May 20,1982.\nBernard P. Reese, Jr., of Reese, Reese and Bagley, of Rockford, for appellants.\nBrassfield, Cowan & Howard, of Rockford (Eugene E. Brassfield and Frederic T. Brandt, of counsel), for appellees." }, "file_name": "0635-01", "first_page_order": 657, "last_page_order": 661 }