In re N.C., a Minor , 2014 IL 116532 ( 2014 )

2014 IL 116532
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 116532)
In re N.C., a Minor (The People of the State of Illinois, Appellant, v. Nichole G.,
Appellee, and Department of Healthcare and Family Services,
Intervenor-Appellee).
Opinion filed June 19, 2014.
JUSTICE KILBRIDE delivered the judgment of the court, with opinion.
Justices Freeman, Thomas, Karmeier, and Burke concurred in the judgment and
opinion.
Justice Theis specially concurred, with opinion, joined by Chief Justice Garman.
OPINION
¶1 This appeal asks whether the State has standing in a juvenile neglect proceeding
(705 ILCS 405/1-1 et seq. (West 2012)) to challenge the paternity of a man, Alfred C.,
who signed a voluntary acknowledgement of paternity under the Illinois Parentage Act
of 1984 (750 ILCS 45/1 et seq. (West 2012)). Four days after the birth of the minor,
N.C., the State filed a juvenile neglect petition seeking to have N.C. adjudicated
neglected and made a ward of the court. On the State’s motion, the circuit court of
Peoria County dismissed Alfred from the neglect proceedings, based on DNA evidence
establishing that he was not N.C.’s biological father.
¶2 Following adjudicatory and dispositional hearings, the circuit court found that N.C.
was neglected and the respondent mother, Nichole G., was unfit, made N.C. a ward of
the court, and named the Department of Children and Family Services as N.C.’s
guardian. A majority of the appellate court reversed, concluding that the State did not
have standing to challenge Alfred’s paternity in the neglect proceedings and, even if it
had standing, the State did not comply with the applicable statutory provisions. The
appellate court remanded the matter to the circuit court for new neglect proceedings
that would include Alfred. For the reasons that follow, we affirm the appellate court’s
judgment, and remand with directions.
¶3 I. BACKGROUND
¶4 Respondent, Nichole G., gave birth to N.C. on February 17, 2012, at Proctor
Hospital in Peoria, Illinois. Nichole was not married at the time. The following day,
February 18, 2012, Nichole and her boyfriend, Alfred C., executed a voluntary
acknowledgement of paternity of N.C., referred to by the parties and the lower courts in
this case as a VAP.
¶5 The VAP advised Alfred that it constituted a legal document that operated “the
same as a court order determining the legal relationship between a father and child.”
The VAP expressly imposed a legal responsibility on Alfred to provide financial
support for N.C. until the age of 18 years, including child support and medical support.
The VAP did not grant Alfred a right to custody or visitation, but it did provide him the
right to seek custody or visitation from the court. Alfred was also entitled to all notices
of adoption proceedings. Both Nichole and Alfred had the right to rescind the VAP by
signing a “Rescission of VAP” form within 60 days of the earlier of the
acknowledgement’s execution or a proceeding relating to the child. The VAP also
explicitly waived Alfred’s right to genetic testing.
¶6 On February 21, 2012, four days after Nichole gave birth to N.C. and three days
after Nichole and Alfred executed the VAP, the Department of Children and Family
Services (DCFS) took N.C. into protective custody. On February 22, 2012, DCFS filed
a petition in the circuit court of Peoria County alleging juvenile neglect under section
2-13 of the Juvenile Court Act of 1987 (705 ILCS 405/2-13 (West 2012)). The petition
identified Nichole as N.C.’s mother and Alfred as N.C.’s father. The petition contained
separate allegations against Nichole and Alfred to support the charges.
¶7 Specifically, the petition alleged that Nichole: (1) had been adjudicated an unfit
parent in previous proceedings for her other three children; (2) had not subsequently
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been found to be a fit parent; (3) had two paramours who committed physical acts of
violence against Nichole or her children; and (4) had a criminal history of retail theft in
2010. The petition alleged that Alfred (1) was bipolar and was not taking his
medication; (2) had anger management issues; (3) was homeless after being “kicked
out” of his sister’s house; and (4) had an extensive criminal history. Alfred’s criminal
history included resisting police officers in 2011; harassing a witness, unlawful
restraint, and resisting arrest in 2006; threatening a public official in 2004; aggravated
battery and possession of an explosive or incendiary device in 2000; battery, criminal
damage to property, and disorderly conduct in 1998; battery and resisting a police
officer in 1994; battery in 1991; and reckless conduct in 1984.
¶8 On February 23, 2012, the circuit court entered an order for temporary shelter care,
placed N.C. in the custody of DCFS, and appointed a guardian ad litem (GAL) to
represent N.C’s interests. The court also entered an order identifying Alfred as the
“legal” father based on the VAP and appointed separate counsel for Nichole and
Alfred.
¶9 On February 28, 2012, Nichole and Alfred filed answers to the State’s neglect
petition. Both stipulated that the State would call witnesses at the adjudicatory hearing
who would support all of the allegations against Alfred.
¶ 10 Also on February 28, 2012, the State made an oral request for genetic testing on
Alfred “due to the VAP.” None of the parties objected to this motion. The court granted
the State’s request and ordered the parties to cooperate. The court also ordered DCFS to
schedule and pay for the testing.
¶ 11 On March 6, 2012, Nichole and Alfred got married. The next day, March 7, 2012,
Nichole and Alfred participated in a DCFS Integrated Assessment Interview conducted
by two caseworkers from Family Core. Based on the interview statements made by
Nichole and Alfred, the caseworkers created a report summarizing the background of
N.C.’s case and the personal history of Alfred and Nicole.
¶ 12 In pertinent part, the report noted that Alfred signed the VAP stating he was N.C.’s
father, but the report claimed that Nichole “questioned paternity.” Alfred and Nichole
gave slightly conflicting accounts of their relationship, but both stated that they initially
met at the Peoria bus station in either 2009 or 2010. They dated briefly, until Alfred
moved to southern Illinois.
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¶ 13 Alfred told the screeners that he returned to Peoria in December 2011, when he and
Nichole started dating again. Nichole, however, told screeners that Alfred returned to
Peoria in May 2011, and they resumed their relationship. Nichole stated that she first
had sexual relations with Alfred in May 2011. Nicole further explained that she also
“dated” another man, Joseph R., from May 2011 until December 2011.
¶ 14 Alfred told the screeners that he was “very confident” that N.C. was his child.
Nichole, however, told the screeners that she “tried” to explain to Alfred that he is
likely not N.C.’s father. Nichole suggested that N.C.’s biological father was her former
boyfriend, Joseph R. Nichole explained that she was dating Joseph R. when she
became pregnant with N.C.
¶ 15 In the final section of Alfred’s interview, the screeners concluded that it is “highly
likely” that Alfred was not N.C.’s biological father. The screeners further concluded
that Alfred’s “active, untreated mental health symptoms, combined with his lifestyle,
significant criminal history, and suspected domestic violence are also concerns when
considering any role he may play in providing care to [N.C.], either as her determined
father or as [Nicole’s] husband.”
¶ 16 On March 16, 2012, LabCorp, a genetic testing company, took samples from
Alfred and N.C. for DNA analysis consistent with the trial court’s prior order for
genetic testing. On April 1, 2012, LabCorp issued a report concluding that Alfred was
not the biological father of N.C., calculating the probability of Alfred’s paternity at
0.00%.
¶ 17 On April 3, 2012, the State filed a “motion for declaration of nonpaternity,” citing
LabCorp’s report finding that Alfred was not N.C.’s biological father. The State sought
a declaration that Alfred “is not the legal father of [N.C.],” and asked that Alfred “be
removed as a party” from the neglect proceeding. The State did not cite any specific
statutory provision in its motion. Neither Alfred nor Nichole filed an objection to the
State’s motion.
¶ 18 At a hearing on April 30, 2012, the trial court heard arguments on both the State’s
motion for declaration of nonpaternity and the State’s petition alleging juvenile
neglect. The State, the GAL, and separate counsel for Alfred and Nichole appeared at
the hearing.
¶ 19 The court first considered the State’s motion for declaration of nonpaternity. The
parties stipulated that Nicole and Alfred had executed a VAP. Over Nicole’s objection,
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the State presented the unsworn testimony of the Family Core caseworker, who stated
that Nicole told her that she and Alfred’s relationship began in December 2011.
According to the caseworker, Alfred initially claimed the relationship started in
December 2011. When Alfred was reminded that N.C. was born in February 2012, he
stated that he and Nicole were intimate in either May or June of 2011.
¶ 20 During arguments, the State conceded that it could not bring an action for
nonexistence of a parent and child relationship under section 7 of the Parentage Act
(750 ILCS 45/7(b) (West 2012)). The State contended, however, that it was entitled to
challenge the VAP under section 6(d) of the Parentage Act (750 ILCS 45/6(d) (West
2012)), authorizing challenges to a VAP based on fraud, duress, or material mistake of
fact. The State argued that the evidence that Alfred and Nichole’s relationship did not
begin until December 2011, with N.C.’s birth in February 2012, constituted either a
material mistake of fact or fraud on the issue of Alfred’s paternity. Thus, the State
asked the court to vacate the VAP.
¶ 21 The GAL agreed with the State that sufficient grounds existed to “set side or
nullify” the VAP under section 6(d) of the Parentage Act based on fraud or material
mistake of fact. The GAL explained that upholding the VAP in this case would
“undermine its purpose to establish a legal relationship between a biological father and
his child.” In support, the GAL noted that the VAP expressly stated that its purpose was
to establish a legal relationship between a biological father and his child when the
parents are not married. The GAL further argued that a VAP “is not a proper way to
establish a relationship between a non-biological father and a child.” Instead, the GAL
argued that type of relationship should be established through adoption. Alternatively,
the GAL argued that the matter could be resolved by “a motion or a petition for
nonpaternity brought by a proper party.”
¶ 22 Counsel for Alfred argued that the valid VAP legally established Alfred as N.C.’s
father and that the State had not met its burden to invalidate the VAP based on fraud,
material mistake of fact, or duress. Counsel noted that both Alfred and Nichole claimed
to have had sexual relations in June 2011, making it possible for him to be the
biological father of N.C.
¶ 23 Citing People ex rel. Department of Public Aid v. Smith, 212 Ill. 2d 389 (2004), and
In re Parentage of G.E.M., 382 Ill. App. 3d 1102 (2008), Nichole’s counsel argued that
challenging a VAP is difficult. Specifically, counsel argued that a VAP could not be
challenged by “a simple motion,” that the State did not have standing to challenge the
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VAP, and that the State did not present sufficient evidence to invalidate the VAP in this
case.
¶ 24 Following arguments, the court granted the State’s motion for declaration of
Alfred’s nonpaternity, finding that it was in N.C.’s best interests. The court explained
that: (1) the State’s motion was filed shortly after N.C.’s birth; (2) unopposed genetic
testing established that Alfred was not N.C.’s biological father; and (3) it would be bad
public policy to allow someone who is not the child’s biological father to sign a VAP to
establish himself as the father when he is not the child’s actual father. The court then
discharged Alfred as a party to the neglect proceedings, and granted the State’s motion
to amend the neglect petition to reflect that Alfred was no longer the legal father of
N.C.1
¶ 25 After discharging Alfred, the trial court proceeded to an adjudicatory hearing on the
neglect petition. At the start of the hearing, the court granted the State’s request to
question Nichole about the possible biological father of N.C. Nichole identified Joseph
R. as the only potential father of N.C. Nichole stated that Joseph R. lived in Peoria, but
she did not know his address.
¶ 26 Following additional brief testimony from Nichole on the neglect petition, the court
determined that the State had proven all of the allegations. Therefore, the court found
that N.C.’s environment was injurious to her health and, thus, she was a neglected
minor.
¶ 27 On April 30, 2012, the circuit court entered an order finding Joseph R. to be the
putative father of N.C. The sheriff of Peoria County personally served Joseph R. with a
juvenile court summons to appear on May 21, 2012, on the allegations of N.C. being a
neglected minor. A Family Core caseworker sent Joseph R. a letter at the homeless
shelter he frequented, advising him that he may be the father of a child born in February
2012. The letter asked Joseph R. to contact the caseworker immediately and also
offered Joseph R. assistance in establishing paternity. It is not apparent from the record
whether Joseph received that letter. Ultimately, though, Joseph did not contact the
caseworker and did not appear at the dispositional hearing.
1
The circuit court granted Alfred’s request to certify the order for appeal, and Alfred filed a petition
for leave to appeal pursuant to Supreme Court Rule 306(a)(5). The appellate court denied Alfred petition
on May 25, 2012. Alfred is not a party to this appeal.
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¶ 28 On May 21, 2012, following a hearing, the circuit court entered a dispositional
order making N.C. a ward of the court and naming the Guardian Administrator of
DCFS as N.C.’s guardian. On May 25, 2012, Nichole filed a notice of appeal.
¶ 29 On appeal, a majority of the appellate court reversed. The majority held that
Nichole had standing to appeal the finding of nonpaternity against Alfred and his
discharge from the case because they were married. The majority further found,
however, that the State did not have standing to challenge Alfred’s paternity in the
neglect proceedings. 2013 IL App (3d) 120438, ¶¶ 13, 20.
¶ 30 Alternatively, the majority held that even if the State had standing to challenge
Alfred’s paternity and the VAP under section 6(d), the State failed to prove the
requisite material mistake of fact. The majority reasoned that “[i]t is unclear whether
the genetic identity of N.C. is material as to Alfred, because even after discovering he
was not the biological father he still has sought to uphold the validity of the VAP and
remain the legal father of N.C.” The majority also concluded that the State was not a
party authorized under section 7(b) to bring an action to disestablish Alfred as N.C.’s
father. 2013 IL App (3d) 120438, ¶¶ 14, 22.
¶ 31 Ultimately, the majority concluded that the trial court committed reversible error
when it granted the State’s motion for declaration of nonpaternity and dismissed Alfred
from the neglect proceedings. The majority determined that, “[a]ssuming Alfred’s
status as the legal father remains unchanged, both respondent and Alfred should have
the opportunity to present evidence as to whether N.C. is neglected.” Because Alfred
was a necessary party in the neglect proceedings, the majority reversed the trial court’s
finding of neglect against Nichole and remanded for a new hearing on the neglect
petition. 2013 IL App (3d) 120438, ¶ 23.
¶ 32 Justice Carter dissented, arguing that the State had standing to file the motion for
nonpaternity because the State was obligated to act in N.C.’s best interests under the
Juvenile Court Act, and the evidence demonstrated that it was in N.C.’s best interests to
make a determination of paternity. Justice Carter noted that the GAL supported the
State’s position that N.C.’s best interests would not be served by allowing the VAP to
stand. Moreover, the GAL could have filed its own motion for declaration of
nonpaternity on N.C.’s behalf under the Parentage Act (750 ILCS 45/7(b) (West
2012)). Thus, Justice Carter concluded that “under the unique facts of the present case,
the State was authorized and, perhaps, obligated under the Juvenile Court Act and the
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Parentage Act to file the motion for declaration of nonpaternity.” 2013 IL App (3d)
120438, ¶ 31 (Carter, J., dissenting).
¶ 33 Justice Carter also argued that nothing in the Parentage Act expressly prohibited
the State from challenging a VAP, nor did the Act prohibit the State from filing a
motion to declare nonpaternity under the circumstances of N.C.’s case. Finally, to the
extent that the Parentage Act requires a party challenging a VAP to show a material
mistake of fact, the DNA evidence here conclusively established that Alfred was
mistaken on the issue of whether he was N.C.’s biological father. 2013 IL App (3d)
120438, ¶¶ 32, 33 (Carter, J., dissenting).
¶ 34 This court allowed the State’s petition for leave to appeal (Ill. S. Ct. R. 315(a) (eff.
July 1, 2013)) and allowed the Department of Healthcare and Family Services to
intervene as an appellee.2 We also allowed the Cook County Public Guardian, the
Civitas ChildLaw Clinic and LAF to file amicus curiae briefs (Ill. S. Ct. R. 345 (eff.
Sept. 20, 2010)).
¶ 35 II. ANALYSIS
¶ 36 On appeal, the State argues that it has standing to ensure that N.C.’s biological
father was participating in the neglect proceedings under its general responsibility to
protect neglect minors, and under four specific statutory provisions in the Juvenile
Court Act and Parentage Act. Because the State is obligated to care for neglected
minors, such as N.C., under the parens patriae doctrine (In re D.S., 198 Ill. 2d 309, 328
(2001)), the State contends that it has the requisite “cognizable interest” necessary to
confer standing in this case.
¶ 37 More specifically, the State argues that its actions to identify N.C.’s biological
father in the neglect proceedings were permitted under four statutory provisions: (1)
section 2-13(6) of the Juvenile Court Act, authorizing the State to file “one or more
motions in the best interests of the minor” while neglect proceedings are pending in the
circuit court (705 ILCS 405/2-13(6) (West 2012)); (2) section 6(d) of the Parentage
Act, authorizing challenges to a VAP based on fraud, duress, or material mistake of fact
(750 ILCS 45/6(d) (West 2012)); (3) section 7(a) of the Parentage Act, authorizing a
2
To clarify the parties involved in this appeal, we note that the intervening appellee, Department of
Healthcare and Family Services (the Department), is distinct from the Department of Children and
Family Services (DCFS).
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child, mother, pregnant woman, any person or public agency who has custody or
provides support to the child, and the presumed or alleged father to bring an action to
determine the existence of the father and child relationship (750 ILCS 45/7(a) (West
2012)); or (4) section 7(b) of the Parentage Act, authorizing a child, natural mother, or
presumed father to declare the nonexistence of a parent and child relationship (750
ILCS 45/7(b) (West 2012)). For parts of its argument, the State emphasizes that N.C.’s
GAL supported its motion to disestablish Alfred’s paternity and remove him from the
neglect proceedings.
¶ 38 Nichole responds that actions to disestablish paternity are not specifically
authorized under the Juvenile Court Act and the doctrine of parens patriae is
inapplicable here because the State is effectively seeking to make N.C. an illegitimate
child. Nichole contends that “it is entirely too speculative (and premature) to presume
that N.C. is better off as an illegitimate child and that the child’s illegitimacy needs to
be protected or advanced by the State’s Attorney.” Nichole asserts that it was improper,
and not in N.C.’s best interests, for the State to seek to disestablish Alfred’s paternity
without first establishing paternity in another putative father. Nichole notes that one of
the stated purposes of the Juvenile Court Act is to preserve family ties whenever
possible, and the State’s actions here directly contradict that purpose.
¶ 39 To the extent that the Parentage Act permits N.C.’s GAL to file motions to
disestablish paternity, Nichole argues the GAL did not file a motion in this case.
Nichole urges this court to reject the State’s contention that it has “vicarious standing”
to file the disestablishment motion based on the GAL’s support of that motion. Under
the Juvenile Court Act, the GAL is solely responsible for filling motions on the minor’s
behalf. Even assuming the State had standing to disestablish paternity here, Nichole
argues that the DNA evidence establishing that Alfred is not N.C.’s biological father is
insufficient to defeat the VAP because it does not constitute a material mistake of fact,
fraud, or duress.
¶ 40 The Department, as the intervening appellee, responds that the Parentage Act
governs parentage issues in proceedings under the Juvenile Court Act, and the State
failed to comply with the Parentage Act’s provisions when it sought to resolve the
parentage issues raised in this case. The Department argues that a VAP is conclusive on
the issue of parentage and verification through genetic testing is not permitted under
the Parentage Act or this court’s decision in People ex rel. Department of Public Aid v.
Smith, 212 Ill. 2d 389 (2004). The Department further argues that if the State wanted to
file a petition to establish N.C.’s biological father under section 7(a) of the Parentage
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Act, it should have named Joseph R. as the alleged father and, if genetic testing
established him as N.C.’s biological father, the trial court could have resolved the
paternity issue accordingly. The Department also contends that the State did not have
standing to disestablish Alfred’s parentage under section 7(b) of the Parentage Act
because that provision strictly restricts standing to mothers, children, and fathers
presumed by marriage.
¶ 41 A. Standing under Juvenile Court Act to Address Paternity Issues
¶ 42 As demonstrated by the parties’ arguments, we must initially decide whether the
State has standing to address paternity issues in proceedings under the Juvenile Court
Act. Standing is a common law concept, satisfied if a “party has a real interest in the
outcome of the controversy.” People v. $1,124,905 U.S. Currency, 177 Ill. 2d 314, 328
(1997). We review de novo the issues of whether a party has standing and the proper
construction of the Juvenile Court Act because they both present questions of law.
Powell v. Dean Foods Co., 2012 IL 111714, ¶ 35; Ries v. City of Chicago, 242 Ill. 2d
205, 216 (2011). When construing statutory provisions, our goal is to determine and
effectuate the legislature's intent, best indicated by giving the statutory language its
plain and ordinary meaning. Innovative Modular Solutions v. Hazel Crest School
District 152.5, 2012 IL 112052, ¶ 22.
¶ 43 The neglect proceedings in this case were initiated under the Juvenile Court Act.
The Juvenile Court Act’s express purpose is to secure for every minor subject to its
provisions “the safety and moral, emotional, mental, and physical welfare of the minor
and the best interests of the community,” and “to preserve and strengthen the minor’s
family ties whenever possible.” 705 ILCS 405/1-2(1) (West 2012). The Juvenile Court
Act also instructs that its provisions must be liberally construed to accomplish its
purpose. 705 ILCS 405/1-2(4) (West 2012).
¶ 44 As this court has recognized, the State’s parens patriae power to protect minors is
codified in the Juvenile Court Act because it “specifically charges the circuit court with
the duty to act in the best interests of the minor and for the minor’s own protection.” In
re D.S., 198 Ill. 2d 309, 328 (2001). Moreover, when a petition is filed under the
Juvenile Court Act alleging that a child is abused, neglected, or dependent, the State
becomes the real party in interest and is solely responsible for prosecuting the petition.
In re J.J., 142 Ill. 2d 1, 6 (1991); In re D.S., 198 Ill. 2d at 322.
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¶ 45 Relevant to the initial standing issue presented here, section 6-9 of the Juvenile
Court Act provides that “[i]f parentage is at issue in any proceeding under this Act ***
the Illinois Parentage Act of 1984 shall apply and the court shall enter orders consistent
with that Act.” 705 ILCS 405/6-9(1) (West 2012). Applying the plain meaning of this
provision, section 6-9(1) contemplates the State raising, and the circuit court resolving,
parentage issues in a neglect proceeding under the Juvenile Court Act. Implicitly, then,
section 6-9(1) authorizes the State to raise parentage issues in a neglect proceeding
under the Juvenile Court Act in a manner consistent with the Parentage Act.
¶ 46 Moreover, section 2-13(6) of the Juvenile Court Act provides that “[a]t any time
before dismissal of the petition or before final closing and discharge *** one or more
motions in the best interests of the minor may be filed.” 705 ILCS 405/2-13(6) (West
2012). A motion under section 2-13(6) must include sufficient facts in support of the
relief requested. 705 ILCS 405/2-13(6) (West 2012). This unlimited provision broadly
authorizes the State to file any type of motion if it is in the best interests of the minor.
Necessarily, this would include a motion to address a paternity issue in the best
interests of the minor if sufficient facts in support were included in the motion.
¶ 47 Thus, recognizing the Juvenile Court Act’s purpose and the State’s unique
enforcement role and liberally construing the plain meaning of sections 6-9(1) and
2-13(6) to accomplish the Juvenile Court Act’s goals (705 ILCS 405/1-2(4) (West
2012)), we conclude that the State has standing to raise parentage issues in a neglect
proceeding in the best interests of a minor. Although the State is authorized to raise a
parentage issue in a neglect proceeding under the Juvenile Court Act, it is equally clear
that the State’s action must comply with the Parentage Act. 705 ILCS 405/6-9(1) (West
2012). Accordingly, we next consider whether the State’s challenge to Alfred’s
paternity in the underlying neglect proceedings complied with the Parentage Act.
¶ 48 B. The Parentage Act
¶ 49 The State asserts that its challenge to Alfred’s paternity complied with the
Parentage Act in three separate and alternative ways. Specifically, the State relies on
the following actions authorized by the Parentage Act: (1) an action to invalidate a
VAP under section 6(d) (750 ILCS 45/6(d) (West 2012)); (2) an action to establish a
father and child relationship under section 7(a) (750 ILCS 45/7(a) (West 2012)); or (3)
an action to declare the nonexistence of the parent and child relationship under section
7(b) (750 ILCS 45/7(b) (West 2012)). See supra ¶ 37.
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¶ 50 The State’s argument requires us to construe the Parentage Act, presenting a
question of law that we review de novo. Innovative Modular Solutions v. Hazel Crest
School District 152.5, 2012 IL 112052, ¶ 22. The fundamental goal of statutory
construction is to ascertain and give effect to the legislature’s intent, best indicated by
giving the statutory language its plain and ordinary meaning. Innovative Modular
Solutions, 2012 IL 112052, ¶ 22. This court will enforce clear and unambiguous
statutory language as it is written, and we will not read into it exceptions, conditions, or
limitations not expressed by the legislature. Ryan v. Board of Trustees of the General
Assembly Retirement System, 236 Ill. 2d 315, 319 (2010).
¶ 51 The Parentage Act creates a statutory mechanism for legally establishing a
parent-child relationship. J.S.A. v. M.H., 224 Ill. 2d 182, 198 (2007). The Parentage Act
serves Illinois’s public policy by expressly recognizing the right of every child to the
physical, mental, emotional and monetary support of his or her parents. 750 ILCS
45/1.1 (West 2012). Under the Parentage Act, a father and child relationship can be
established a number of ways. 750 ILCS 45/4 (West 2012). The Parentage Act also
contains a number of presumptions of paternity based on the marital status of the
parents or the signing of a VAP. 750 ILCS 45/5 (West 2012).
¶ 52 Relevant here, under section 6 of the Parentage Act, is that a parent and child
relationship can be established by consent with the valid execution of a VAP between
the biological mother and a man claiming to be the child’s father. 750 ILCS 45/6(a)
(West 2012). Paternity established by a VAP “has the full force and effect of a
judgment entered under this Act and serves as a basis for seeking a child support order
without any further proceedings to establish paternity.” 750 ILCS 45/6(b) (West 2012).
In fact, a judicial or administrative proceeding to “ratify” paternity established under
section 6 is “neither required nor permitted.” 750 ILCS 45/6(c) (West 2012). The
presumption of paternity created by a VAP is conclusive unless the VAP is rescinded
by the father or mother within the earlier of 60 days or the date of an administrative or
judicial proceeding involving one of the signatories and relating to the child. 750 ILCS
45/5(b)(1), (b)(2) (West 2012); 410 ILCS 535/12(6), (7) (West 2012). Here, it is
undisputed that Nichole and Alfred signed a VAP. Thus, under sections 5 and 6 of the
Parentage Act, Alfred is conclusively presumed to be N.C.’s legal father. The State
contends, however, that it properly challenged Alfred’s presumed paternity under
section 6(d) and two separate subsections of section 7. We address each of the State’s
arguments in turn.
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¶ 53 1. Section 6(d) of the Parentage Act
¶ 54 Section 6(d) details the only permissible way to challenge a VAP under the
Parentage Act, and provides, in its entirety:
“(d) A signed acknowledgement of paternity entered under this Act may be
challenged in court only on the basis of fraud, duress, or material mistake of
fact, with the burden of proof upon the challenging party. Pending outcome of
the challenge to the acknowledgement of paternity, the legal responsibilities of
the signatories shall remain in full force and effect, except upon order of the
court upon a showing of good cause.” 750 ILCS 45/6(d) (West 2012).
This language demonstrates that the legislature intended any challenge under section
6(d) to be limited in nature, identifying only three possible grounds for a
challenge—fraud, duress, or material mistake of fact. Indeed, these narrow grounds are
similar to the equitable grounds used by parties to a contract to rescind the contract and
restore the parties to their initial status. See, e.g., Freedberg v. Ohio National Insurance
Co., 2012 IL App (1st) 110938, ¶ 27 (recognizing that a contract may be rescinded
based on fraud or misrepresentation); Corcoran v. Northeast Illinois Regional
Commuter R.R. Corp., 345 Ill. App. 3d 449, 454 (2003) (discussing requirements to
rescind a contract based on a mutual mistake of a material fact); Osage Corp. v. Simon,
245 Ill. App. 3d 836, 843 (1993) (voiding a contract that was a product of duress).
Section 6(d) also plainly instructs that the legal responsibilities of the signatories
remain in full force pending any challenge to the VAP. The section, however, provides
no basis for the State, who did not sign the VAP, to employ the contractual-based
grounds in section 6(d) to defeat the VAP. Therefore, considered in its entirety, the
language of section 6(d) suggests that the legislature intended to permit the signatories
to use section 6(d) but did not intend to permit the State to challenge a VAP under
section 6(d).
¶ 55 Construing section 6(d) of the Parentage Act narrowly is consistent with this
court’s holding in People ex rel. Department of Public Aid v. Smith, 212 Ill. 2d 389
(2004), that section 6(d) provided a tightly limited means to defeat a VAP. In Smith, we
held that a man who signs a VAP is not permitted to later challenge the VAP under
section 6(d) with DNA evidence showing that he is not the child’s biological father.
Smith, 212 Ill. 2d at 391. We also recognized, as we do here, that section 6(d) explicitly
limits VAP challenges only to claims of fraud, duress, or material mistake of fact.
Smith, 212 Ill. 2d at 399.
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¶ 56 Explaining the limited options to challenge a VAP, we observed that section 6(d)
was enacted to bring Illinois in compliance with federal regulations pertaining to the
Social Security Act and block grants for the Temporary Assistance for Needy Families
program (TANF). Among other requirements, TANF mandates that a state operate a
child support enforcement program that includes a simple process for voluntary
acknowledgements of paternity with a 60-day rescission option, and limits challenges
to a VAP only on the basis of fraud, duress, or material mistake of fact. Smith, 212 Ill.
2d at 402-03.
¶ 57 We also noted in Smith that a presumption of paternity created by a VAP is
conclusive under the Parentage Act, unlike the rebuttable paternity presumptions
created by marriage. Smith, 212 Ill. 2d at 404-05. In other words, the legislature
intended a challenge to the presumption of paternity created by a VAP to be more
limited and difficult. Thus, we concluded that “[u]nder the limited circumstances
presented in section 6(d), a man who voluntarily acknowledges paternity can later
challenge the voluntariness of the acknowledgement if he can show that it was
procured by fraud, duress, or material mistake of fact, but the Parentage Act does not
allow him to challenge the conclusive presumption of paternity with contrary
evidence.” (Emphasis in original.) Smith, 212 Ill. 2d at 405.
¶ 58 Although we did not consider whether the State could bring a VAP challenge under
section 6(d) in Smith, its rationale is consistent with our construction of section 6(d) in
this case. Our recognition in Smith of the limited nature of a section 6(d) challenge
brought by a man who agreed to be legally bound by a VAP comports with our
conclusion here that the legislature intended section 6(d) to be used by the VAP
signatories because they, unlike the State, are legally obligated to provide financial
support to the child under the VAP. It is also consistent with Smith’s recognition that
Illinois adopted a VAP system specifically to comply with federal regulations seeking
to facilitate the enforcement of child support orders. Certainly, the enforcement of
child support orders based on a VAP could potentially be hindered if the State is
permitted in a juvenile neglect proceeding to use section 6(d) to invalidate a VAP with
DNA evidence, as the State attempted here. See People v. Latona, 184 Ill. 2d 260, 269
(1998) (noting that this court has a duty to avoid construing a statute in a way that
defeats the purpose of the statute); see also 750 ILCS 45/6(c) (West 2012) (prohibiting
DNA evidence from being used to “ratify” a validly executed VAP).
¶ 59 Accordingly, the State cannot challenge Alfred’s paternity under section 6(d).
Thus, we need not consider whether the State complied with section 6(d) here, or
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whether its evidence was sufficient to establish a material mistake of fact or fraud.
While the State is not permitted to challenge Alfred’s paternity under section 6(d), that
does not necessarily mean that a man presumed to be a father under a VAP is forever
shielded from a paternity contest. To the contrary, as explained below, the Parentage
Act permits an action to establish or disestablish a father and child relationship,
regardless of any presumption of paternity, in section 7. See also In re Paternity of an
Unknown Minor, 2011 IL App (1st) 102445, ¶ 10 (VAP does not preclude paternity
action by biological father under section 7(a) of the Parentage Act); In re M.M., 401 Ill.
App. 3d 416, 422-23 (2010) (VAP does not preclude paternity action by the minor
child under section 7(b) of the Parentage Act).
¶ 60 2. Section 7 of the Parentage Act
¶ 61 Next, we consider whether the State’s challenge to Alfred’s paternity complied
with section 7 of the Parentage Act. Generally, section 7 of the Parentage Act details
the procedures for bringing an action to determine the existence of a father and child
relationship (establish) or declare the nonexistence of a father and child relationship
(disestablish), and it identifies who can initiate those actions. 750 ILCS 45/7 (West
2012). Relevant to the issue raised here, the Parentage Act also authorizes the trial
court to order genetic testing to establish or disestablish the father and child
relationship in any type of section 7 action. 750 ILCS 45/11(a) (West 2012). If the trial
court finds that the genetic testing shows the alleged father is not the biological parent
of the child, “the question of paternity shall be resolved accordingly.” 750 ILCS
45/11(f)(1) (West 2012). Alternatively, if the testing shows the alleged father is the
biological parent of the child, “the alleged father is presumed to be the father, and this
evidence shall be admitted.” 750 ILCS 45/11(f)(3) (West 2012).
¶ 62 The State argues that its challenge to Alfred’s paternity was proper as either an
establishment action under subsection (a) or a disestablishment action under subsection
(b) of section 7 of the Parentage Act. The State also emphasizes that N.C.’s GAL
supported its challenge to Alfred’s paternity.
¶ 63 We first consider subsection (a) of section 7, providing a mechanism to establish a
father and child relationship. Subsection (a) broadly authorizes a variety of individuals
to file an action to determine the existence of the father and child relationship,
regardless of whether the relationship is already presumed under section 5 of the Act.
750 ILCS 45/7(a) (West 2012). The expansive group permitted to bring an action under
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subsection (a) includes: (1) the child; (2) the mother; (3) a pregnant woman; (4) any
person or public agency who has custody of, or is providing or has provided financial
support to the child; (5) the Department if it is providing or has provided financial
support or is assisting with child support collection services; or (6) a man presumed or
alleging himself to be the father of the child or expected child. 750 ILCS 45/7(a) (West
2012). The only requirement for bringing a subsection (a) action is that “[t]he
complaint shall be verified and shall name the person or persons alleged to be the father
of the child.” 750 ILCS 45/7(a) (West 2012).
¶ 64 Initially, we note that the appellate court did not consider whether the State’s
challenge was proper as an establishment action under section 7(a). The reason for this
is clear. Alfred is presumed to be N.C.’s legal father as a result of the VAP. In the
circuit court, the State solely sought to remove Alfred from the proceedings and did not
identify another man as N.C.’s alleged father, as would be required under section 7(a).
Instead, the State’s contest to Alfred’s paternity indisputably was in the form of a
disestablishment action, the subject of section 7(b). In other words, this appeal does not
involve an establishment action under section 7(a). Accordingly, because the State’s
challenge here cannot be construed as an establishment action under section 7(a), we
need not consider in this case whether the State is authorized to bring an establishment
action under that provision, or otherwise complied with section 7(a).
¶ 65 Thus, we next consider whether the State’s challenge to Alfred’s paternity was
proper as a disestablishment action under subsection (b) of section 7. Subsection (b)
provides a much more narrow type of action and explicitly limits its application to
actions brought by the child, the natural mother, or a man presumed to be the father for
reasons related to marriage. 750 ILCS 45/7(b) (West 2012). An action under subsection
(b) must also be brought by verified complaint. 750 ILCS 45/7(b) (West 2012).
¶ 66 Here, the State is not a party statutorily authorized to bring a disestablishment
action under subsection (b), and the action was not brought by verified complaint. We
reject the State’s assertion that it obtained standing to bring a disestablishment action
under subsection (b) based on the GAL’s support of the State’s attempt to remove
Alfred from the neglect proceedings. Although we agree with the State that N.C.’s
GAL, acting on N.C.’s behalf, could have brought the disestablishment action under
subsection (b), we emphasize that in this case it was the State and not the GAL that
filed the motion. See In re D.S., 198 Ill. 2d 309, 321 (2001) (GAL is responsible for
filing pleadings on behalf of a minor in juvenile court proceedings); see also In re
M.M., 401 Ill. App. 3d 416, 421-24 (2010) (affirming GAL’s ability to file a petition to
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disestablish an acknowledged father in a juvenile neglect proceeding). The Act,
however, narrowly authorizes a disestablishment action under subsection (b) to be filed
by the child, the mother, or a man presumed to be the father by reason of marriage. 750
ILCS 45/7(b) (West 2012).
¶ 67 We also agree with the State that if the GAL files an action to disestablish a father
under subsection (b) of section 7 in a juvenile neglect proceeding, the State assumes the
responsibility for prosecuting the action in that proceeding. See In re D.S., 198 Ill. 2d at
322 (explaining that in proceedings under the Juvenile Court Act the State is
responsible for prosecuting the action). That does not mean, however, that the State
obtains standing to initiate a subsection (b) disestablishment action vicariously through
the GAL. To the contrary, the Parentage Act does not authorize the State to initiate a
subsection (b) disestablishment action. See 705 ILCS 405/6-9(1) (West 2012)
(Parentage Act applies to “any” proceeding under the Juvenile Court Act when a
parentage issue is involved); see also Ryan v. Board of Trustees of the General
Assembly Retirement System, 236 Ill. 2d 315, 319 (2010) (this court must enforce
unambiguous statutory language as it is written). Therefore, we conclude that the State
is not permitted to initiate a disestablishment action under subsection (b) of section 7 of
the Parentage Act.
¶ 68 Because the State’s challenge to Alfred’s paternity in this case did not comply with
the Parentage Act, we remand, as the appellate court did, for a new neglect proceeding.
We note, however, that by remanding for a new neglect proceeding, we do not mean
that proceedings to disestablish Alfred’s paternity are foreclosed. In the proceedings
below, N.C.’s GAL supported the State’s attempt to disestablish Alfred as N.C.’s
father. Because the GAL has standing to file a disestablishment action under section
7(b) of the Parentage Act (750 ILCS 45/7(b) West 2012)), the GAL may initiate such a
proceeding on remand. Depending on the results of any paternity proceedings properly
held in accord with the Parentage Act, a new neglect proceeding may or may not be
necessary.
¶ 69 III. CONCLUSION
¶ 70 In summary, we hold that although a party’s paternity may be challenged in a
neglect proceeding under the Juvenile Court Act, the challenge must comply with the
provisions of the Parentage Act. Here, the State’s challenge to Alfred’s paternity failed
to comply with the Parentage Act.
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¶ 71 Accordingly, we affirm the appellate court’s judgment. We remand with directions
for the trial court to conduct a new hearing on the neglect petition that includes Alfred
and Nichole. If, however, on remand, N.C.’s GAL decides to renew the challenge to
Alfred’s paternity, the challenge must comply with the Parentage Act. The results of
any such proceedings will determine whether a new neglect proceeding must be held.
¶ 72 Affirmed.
¶ 73 Cause remanded with directions.
¶ 74 JUSTICE THEIS, specially concurring:
¶ 75 The majority initially states that under the Juvenile Court Act “the State has
standing to raise parentage issues in a neglect proceeding in the best interests of a
minor,” as long as the State’s action complies with the Parentage Act. Supra ¶ 47. The
majority then holds that the State cannot comply with the Parentage Act because it has
no standing to challenge paternity under sections 6(d) or 7(b) of the Parentage Act.
Supra ¶¶ 59, 70. Although I agree with the ultimate holding, it is irreconcilable with the
initial premise. I write separately because I disagree that the State’s Attorney has
standing under the Juvenile Court Act to challenge paternity in a neglect proceeding.
Rather, I would hold that the Parentage Act governs issues related to parentage arising
in any civil proceeding and that statute does not authorize the State’s Attorney to
challenge a VAP or to pursue an action to disestablish paternity.
¶ 76 The majority observes that section 6-9 of the Juvenile Court Act contemplates that
parentage issues may arise in a neglect proceeding. 705 ILCS 405/6-9 (West 2012). It
then recognizes that the State has the authority in a neglect proceeding to file motions
in the best interest of a child under section 2-13(6) of the Juvenile Court Act (705 ILCS
405/2-13(6) (West 2012)). From these observations, it concludes that the State’s
Attorney has standing to file a motion in a neglect proceeding to raise paternity issues
in the best interest of the child under the Juvenile Court Act, as long as there are
sufficient facts to support it. Nowhere in its opinion does the majority explain what
relief the State’s Attorney could seek in that motion, or what dispositional order the
circuit court could enter based on that motion. The answer would be none.
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¶ 77 Indeed, the plain language of both the Parentage Act and the Juvenile Court Act
explicitly provide that parentage issues in juvenile court proceedings are governed by
the Parentage Act. See 750 ILCS 45/9(a) (West 2012) (“In any civil action not brought
under this Act, the provisions of this Act shall apply if parentage is at issue.” (Emphasis
added.)); 705 ILCS 405/6-9(1) (West 2012) (“If parentage is at issue in any proceeding
under this Act *** then the [Parentage Act] shall apply and the court shall enter orders
consistent with that Act.”). Thus, the General Assembly has specifically articulated that
any issues involving paternity, whether they arise under the Parentage Act or any other
civil proceeding, must consistently adhere to the statutory directives of the Parentage
Act.
¶ 78 The majority’s determination that the State’s Attorney has standing to challenge
paternity under the best interest provisions of the Juvenile Court Act is inconsistent
with the statutory directives of the Parentage Act, and misconstrues the State’s
Attorney’s limited role under the Parentage Act. The Parentage Act expressly identifies
the purpose of the statute is to further the “right of every child to the physical, mental,
emotional and monetary support of his or her parents under this Act.” 750 ILCS 45/1.1
(West 2012). With that in mind, the statute sets forth a comprehensive scheme for
legally establishing a parent and child relationship and for challenging an established
parent and child relationship. It specifically identifies those parties who may initiate
these types of challenges and the particular procedures which they must follow. See
generally 750 ILCS 45/7 (West 2012).
¶ 79 The General Assembly made a deliberate choice not to include the State’s Attorney
as one of the parties authorized to bring a disestablishment action against a man
conclusively established as the presumed father by a VAP. 750 ILCS 45/7(b) (West
2012). The VAP represents a conscious decision by an individual to accept the legal
responsibility of being the child’s father. This acknowledgment serves an important
role in keeping with the overriding purpose of the statute. The State must give full force
and effect to that acknowledgment in the same manner as a judgment of parentage. 750
ILCS 45/6(b) (West 2012). In keeping with the stated purpose, the statute limits those
that can seek to disestablish paternity to the mother, child, and a man presumed to be
the father for reasons related to marriage. 750 ILCS 45/7(b) (West 2012). In this way,
the General Assembly has recognized and balanced the varied interests at stake,
including the interests of the child.
¶ 80 Although the State’s Attorney argues its standing to challenge parentage derives
from its responsibility under the Juvenile Court Act to act in the best interest of the
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child, the Parentage Act does not expressly provide for the court to consider the best
interests of the child prior to declaring the nonexistence of a parent and child
relationship. Similarly, in cases brought by proper parties to establish paternity under
section 7(a), this court has previously explained that there is no express requirement
that a court first consider the best interests of the child before a legal determination of
paternity can be made. In re Parentage of John M., 212 Ill. 2d 253, 264 (2004). It is
only after parentage is established that the court is then charged with the responsibility
under section 14 with addressing parental rights such as custody or visitation which
shall not be granted unless it is in the best interests of the child. Id. at 264-65.
¶ 81 To be sure, issues may arise as to whether a father who signed a VAP is abusing or
neglecting a child. The State’s Attorney always has the duty and responsibility to
prosecute these issues in the best interest of the child (In re J.J., 142 Ill. 2d 1, 12
(1991)), as it originally set out to do in this case by filing a juvenile neglect petition and
seeking to have N.C. adjudicated neglected and made a ward of the court. Nevertheless,
merely because a paternity issue may arise in the context of a neglect proceeding under
the Juvenile Court Act does not provide the State’s Attorney with standing to challenge
the paternity of a legal father and is inconsistent with the legislative directive of the
Parentage Act. Whether paternity issues arise in a neglect proceeding, a dissolution
proceeding, an adoption proceeding or independently, does not alter the command of
the Parentage Act. It would be contrary to the express legislative directive and public
policy for different rules to apply regarding parentage issues arising in juvenile court
proceedings as opposed to parentage issues arising in other civil proceedings. The
State’s Attorney’s standing, if any, to challenge paternity in this context or in any other
civil proceeding must derive from the Parentage Act. Indeed, as the majority explains,
under the Parentage Act, the State’s Attorney is not authorized to challenge a VAP or to
bring a disestablishment action.
¶ 82 Additionally, I reject the majority’s characterization of the State’s Attorney’s role
under the Parentage Act. The majority holds that if a GAL initiates a disestablishment
action during the pendency of a neglect proceeding on behalf of the child, that the State
must prosecute that action. Supra ¶ 68. The majority relies solely on In re D.S., 198 Ill.
2d 309 (2001), a termination of parental rights case, for support. In D.S., this court held
the power to prosecute a termination of parental rights petition under the Juvenile Court
Act belongs solely to the State. Id. at 322. Significantly, D.S. expressly relied upon the
lack of any private right to prosecute petitions filed pursuant to the Juvenile Court Act,
which is purely a prosecutorial function traditionally reserved to the State. Id.
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¶ 83 In contrast, the Parentage Act expressly contains a provision affording a child a
private right to pursue an action to disestablish parentage. The statute expressly
provides that the GAL may represent the child in that action. 750 ILCS 45/7(c) (West
2012). In terms of counsel, the Act specifically limits the role of the State’s Attorney.
Section 18(b) provides that “[u]pon the request of a mother or child seeking to
establish the existence of a father and child relationship, the State’s Attorney shall
represent the mother or child in the trial court.” (Emphases added.) 750 ILCS 45/18(b)
(West 2012). That section further provides that “[l]egal representation by the State’s
Attorney *** shall be limited to the establishment and enforcement of an order for
support, and shall not extend to visitation, custody, property or other matters.” Id. Thus,
the statute plainly limits the role of the State’s Attorney to involvement only if the
mother or child requests it, and only with respect to establishment of paternity and
enforcement of child support orders. Accordingly, the majority’s holding, that the
State’s Attorney must prosecute a disestablishment action brought by a child or his
GAL during the pendency of a neglect proceeding, is contrary to the plain language of
the statute. Consequently, I cannot join in that part of the majority’s opinion.
¶ 84 In conclusion, under the Juvenile Court Act, the State has broad powers to protect
the welfare of children and several tools at its disposal to accomplish that objective. For
example, the Act empowers the State’s Attorney to remove a minor from her legal
parents if neglect is suspected (705 ILCS 405/2-5 (West 2012)), place the child in
temporary custody (705 ILCS 405/2-10 (West 2012)), require parents to comply with
court orders and service plans to ensure the child’s safety (705 ILCS 405/2-23 (West
2012)), and to terminate parental rights upon proof of unfitness if in the best interest of
the child (705 ILCS 405/2-27, 2-28 (West 2012)). In contrast, under the Parentage Act,
the General Assembly has chosen to limit the role of the State’s Attorney with respect
to issues related to paternity. That limited role does not include challenging a VAP or
disestablishing the paternity of a man who has been conclusively presumed to be the
legal father.
¶ 85 CHIEF JUSTICE GARMAN joins in this special concurrence.
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