People v. Robert M. , 340 Ill. Dec. 684 ( 2010 )

FIRST DIVISION
May 21, 2010
No. 1-09-3468
In re M.M., a Minor, )
) Appeal from the
Respondent-Appellee ) Circuit Court of
) Cook County
(The People of the State of Illinois, )
)
Petitioner-Appellee, ) No. 09 JA 604
)
v. )
) The Honorable
Robert M., ) Helaine L. Berger,
) Judge Presiding.
Respondent-Appellant). )
JUSTICE LAMPKIN delivered the opinion of the court:
Respondent, Robert M., appeals the trial court’s order
entering a finding of nonpaternity of the minor, M.M., pursuant
to deoxyribonucleic acid (DNA) testing. Robert M. contends the
trial court’s finding was erroneous where he and the minor’s
mother, Shante M., executed a voluntary acknowledgment of
paternity (VAP) and he signed the minor’s birth certificate as
the father. Based on the following, we affirm.
FACTS
M.M. was born to Shante M. on February 8, 2009. At all
relevant times, Shante M. has been a ward of the court herself
and will remain as such until her twenty-first birthday on July
16, 2010.
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The case began when the Department of Children and Family
Services (DCFS) received a hotline call alleging M.M. was at risk
of harm and sexual abuse based on an incident of domestic
violence between Shante M. and Robert M., a registered sex
offender living with Shante M., that occurred while M.M. was
present. Timothy Otunde, a division of child protection
investigator, was assigned to investigate the allegation. Based
on Otunde’s investigation, M.M. was taken into custody on July
27, 2009. On July 28, 2009, the State filed a petition for the
adjudication of wardship of M.M.1 based on allegations that the
minor was abused or neglected pursuant to section 2-3(2)(ii) of
the Juvenile Court Act of 1987 (Juvenile Act) (705 ILCS 405/2-
3(2)(ii) (West 2008)). A temporary custody hearing was held on
that date.
Preliminary testimony and admonishments were made. Shante
M. testified that Robert M. is M.M.’s biological father and that
his name appears on the minor’s birth certificate. Robert M.
also testified that he is the biological father of M.M.; however,
he requested a paternity test. The trial court granted the
request over the State’s objection. The parties initially
1
The petition was also filed for the adjudication of
wardship of Shante M.’s older child, M.W. M.W.’s case is not
relevant to the instant appeal.
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expressed their intention to proceed by way of stipulation, but
both Shante M. and Robert M. requested a full hearing.
Otunde testified that he began his investigation in late May
2009. He learned that Shante M., Robert M., and M.M. lived
together and that Robert M. was a registered sex offender, had a
DCFS indicated sexual abuse report2, and was convicted of
sexually abusing a three-year-old. The initial name and address
given for Shante M. were incorrect and Otunde did not learn her
correct name and address until July 7. Otunde discovered Shante
M. was a DCFS ward and contacted Shante M.’s caseworker, Patricia
Brown. Brown said Shante M. had not been cooperating with the
offered UCAN services, which is a teen parenting program. Brown
added that Shante M. was living in an unapproved self-selected
placement. Later, Brown informed Otunde that Shante M. had been
offered parenting classes and counseling, but she refused both.
Shante M., however, did complete her GED and began beauty school.
Otunde went to Shante M. and Robert M.’s apartment several
times in an attempt to speak with them. On his first attempt, a
neighbor told Otunde that the couple lived in the basement, but
Robert M. had been arrested and was in jail. Otunde later
2
According to Otunde, “indicated” is a DCFS term meaning
that an investigation has shown the person committed the alleged
act.
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learned Robert M. had been arrested for domestic battery and was
in jail for approximately one week. Shante M. was the victim of
the domestic battery charge. She allegedly suffered burn
injuries and was taken to the University of Chicago hospital.
The case, however, was dismissed. Otunde also discovered a
second domestic battery arrest that was never prosecuted. Otunde
left notes at the apartment with his contact information. On
July 15, Robert M. called Otunde. Otunde and Robert M. arranged
a meeting with the family the following day at their apartment.
When Otunde arrived at the designated time, no one answered the
door. Robert M. called Otunde on July 17 to arrange another
meeting.
Otunde finally met with Shante M. at the apartment during
the morning of July 21, 2009. Robert M. was not present;
however, he and Shante M. spoke on the telephone several times
while Otunde was there. Otunde informed Shante M. that he was
investigating an allegation of possible abuse and neglect.
Shante M. told Otunde she knew Robert M. was a registered sex
offender; however, she said Robert M. had never harmed M.M.
Shante M. told Otunde that she and Robert M. had been together
for three years. Shante M. admitted she and Robert M. argue, but
denied that they had physical altercations. Otunde informed
Shante M. that, due to Robert M.’s background, either she and the
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children had to move out of the home, Robert M. had to move out,
or the children had to move out. Otunde told Shante M. that she
could enter the Safe Family Program, but she refused. She later
agreed to place M.M. in the program.
Otunde testified that he met with Robert M. at the apartment
later in the evening on July 21, 2009. Otunde explained that,
due to Robert M.’s registered offender status, indicated DCFS
report, and conviction, he was not supposed to be around
children. Otunde added that the only way Robert M. could be
around children was if he entered treatment and a therapist
provided safety clearance on his behalf. Robert M. responded
that he did not believe any therapist would be willing to provide
the requisite clearance even though he had been out of jail for
many years and had not reoffended. Robert M. said he had
received treatment from Doctor Harris at an agency called Emages.
Otunde called Dr. Harris on July 21, 2009. Dr. Harris said
Robert M. was in treatment “a few years back.” Robert M. did not
complete the treatment; instead, once he was released from
parole, he no longer attended treatment. Dr. Harris could not
give a recommendation as to Robert M.’s ability to reoffend.
According to Otunde, Shante M. did place M.M. in the Safe
Family Program on July 22 or 23. Otunde testified, however, that
he took M.M. into protective custody on July 27 because the Safe
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Family Program was only a two-month solution, at best, and Shante
M. could remove the minor at any time.
Shante M. testified that she elected to enroll at UCAN at
the end of August 2008 when she had one child and was pregnant
with M.M. Shante M. said she left UCAN around May 15, 2009, and
moved back in with Robert M. Shante M. disputed telling Otunde
that she lived with Robert M. for three years. However, she said
she occasionally left UCAN during the period of August 2008 and
May 2009 to stay with Robert M. Shante M. added that she stayed
with Robert M. from “time to time” before she entered UCAN.
Shante M. admitted she was supposed to attend parenting training
and classes at UCAN. She said class enrollment was full while
she was there. Shante M. said she attended therapy while at
UCAN, but ceased attending when she left the facility.
Shante M. testified that she knew Robert M. had been
convicted of sexual abuse and was a registered sex offender. She
was aware that the victim was a minor, but denied knowing the
victim was three years old. Shante M. said she never left M.M.
alone with Robert M.
Shante M. admitted she was the complaining witness for
Robert M.’s domestic battery charge on June 28, 2009; however,
she chose to drop the charges. Shante M. said the incident was
“actually an accident” in that Robert M. tripped over her curling
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iron and she was burned on her arm as a result. Shante M.
testified that M.M. was not present during the incident. Shante
M. admitted the couple had a prior domestic battery incident in
which she was arrested and Robert M. was the complaining witness.
Shante M. further admitted that she was indicated for lack
of supervision of M.M. in March 2009; however, she said the case
was “unfounded.” Shante M. also was indicated for risk of harm
to her older child in 2008.
Shante M. testified that she was familiar with and fond of
the Safe Family Program, which she had used on prior occasions.
Specifically, prior to giving birth to M.M., Shante M. placed her
older child in the program from approximately January to March
2009. Shante M. then placed M.M. in the program around May 31,
2009, for approximately four to five weeks when Shante M. began
beauty school. At the time, she did not have M.M.’s birth
certificate or social security number and therefore could not
place M.M. in daycare. According to Shante M., she never placed
M.M. in the Safe Family Program due to concern about Robert M.
After her meeting with Otunde, Shante M. agreed to enroll her
children in the Safe Family Program with the understanding that
they would remain for two or three months while she moved out of
the apartment and got settled.
Robert M. testified that he was convicted of the sex offense
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16 years ago when he was 18 years old. He admitted the victim
was three years old. Robert M. served almost 9 years of an 18-
year prison term. He was released in early 2002. Robert M. said
he was on parole for two years. One condition of his parole was
to attend sex offender therapy, which he did “off and on” for two
years with Dr. Harris at the Emages agency. According to Robert
M., he attended therapy “off and on” because he had to pay for
the sessions and did not have the money to do so on some
occasions. When he completed his parole, Robert M. ceased
attending therapy because he believed that he was “cleared.” He
has never had a court order entered barring him from seeing M.M.
The trial court found probable cause and an urgent and
immediate necessity to remove M.M. to temporary custody.
On September 14, 2009, the paternity test results were read
in open court. The results showed a “combined paternity of zero
that [Robert M.] is the father of [M.M.].” The State informed
the court that it was not seeking a finding of nonpaternity
because the State wanted to obtain a certified copy of M.M.’s
birth certificate and the VAP to determine whether Robert M.
remained the legal father.
On September 29, 2009, the State informed the trial court
that it intended to seek a finding of paternity. Robert M. also
requested a finding of paternity. The trial court ordered the
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State to file a motion and brief in support of its request. The
State complied.
On October 8, 2009, M.M.’s guardian ad litem (GAL) requested
leave to file a consolidated complaint for a declaration of
nonpaternity with the pending petition for adjudication of M.M’s
wardship. On November 5, 2009, the court entertained arguments
on the GAL’s request and granted leave, finding M.M. had standing
to bring the complaint. The GAL filed a verified complaint to
declare the nonexistence of the parent-child relationship
pursuant to section 7(b) of the Illinois Parentage Act of 1984
(Parentage Act) (750 ILCS 45/7(b) (West 2008)). The court
construed Robert M.’s responsive motion as a motion to dismiss,
which was denied. The State subsequently withdrew its motion for
declaration of paternity.
On November 19, 2009, following arguments, the trial court
entered a finding of nonpaternity. The trial court said:
“The Court agrees with [the GAL] that because the
child was not in privity with the finding, the child
has a right to contest the voluntary acknowledgment,
and it does not operate as a judgment against the
child.
***
The Court believes that the minor has an absolute
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right to proceed in this case, as well as in that the
DNA test therefore controls, and that the voluntary
acknowledgment does not bind the minor.”
DECISION
At issue is whether a minor may successfully challenge the
paternity of a man who signed a VAP and birth certificate, but
was later found not to be the biological father based on DNA
testing results.
This issue is a matter of statutory construction, which we
review de novo. People ex rel. Department of Public Aid v.
Smith, 212 Ill. 2d 389, 396-97, 818 N.E.2d 1204 (2004). The
primary goal of statutory interpretation is to construe the
statute in order to ascertain and give effect to the
legislature’s intent. Smith, 212 Ill. 2d at 397. The best
indicator of legislative intent is applying plain and ordinary
meaning to the language of the statute itself. People v. Pack,
224 Ill. 2d 144, 147, 862 N.E.2d 938 (2007).
The statute at issue provides:
“An action to declare the non-existence of the
parent and child relationship may be brought by the
child, the natural mother, or a man presumed to be the
father under subdivision (a)(1) or (a)(2) of Section 5
of this Act. Actions brought by the child, the natural
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mother or a presumed father shall be brought by
verified complaint.” 750 ILCS 45/7(b) (West 2008).
Robert M. contends M.M. is estopped from bringing an action
to declare the nonexistence of their relationship under section
7(b).
The doctrine of collateral estoppel bars the relitigation of
an issue addressed by a court of competent jurisdiction in a
later action between the same parties or their privies in the
same or a different cause of action. Simcox v. Simcox, 131 Ill.
2d 491, 496, 546 N.E.2d 609 (1989). The cause of action at issue
here is Robert M.’s paternity and the establishment of a parent-
child relationship as a result of the VAP. Section 5(a)(3) of
the Parentage Act provides that a man is presumed to be the
natural father of the child if “he and the child’s natural mother
have signed an acknowledgment of paternity in accordance with
rules adopted by the Department of Healthcare and Family Services
under Section 10-17.7 of the Illinois Public Aid Code.” 750 ILCS
45/5(a)(3) (West 2008). The presumption is conclusive unless
rescinded by the earlier of two dates, neither of which was done
here. 750 ILCS 45/5(b) (West 2008). Moreover, a parent-child
relationship may be established by voluntarily signing and
witnessing a VAP (750 ILCS 45/6(a) (West 2008)) and may be
challenged in court only on the basis of fraud, duress, or
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mistake of fact (750 ILCS 45/6(d) (West 2008)), which was not
done here. “Notwithstanding any other provisions of this Act,
paternity established in accordance with subsection (a) has the
full force and effect of a judgment entered under this Act ***.”
750 ILCS 45/6(b) (West 2008).
M.M.’s GAL, however, contends that, because M.M. was not a
party or in privity with Robert M. or Shante M. in the “cause of
action,” she is not barred from challenging that judgment. We
agree. There is no dispute that M.M. was not a party to the
signing of the VAP. We also find M.M. was not in privity with
Robert M. or Shante M. when they executed the document. A line
of parentage cases hold that a minor is not in privity with his
mother in a paternity action and therefore is not barred from
bringing his own paternity action. See Department of Public Aid
ex rel. Stark v. Wheeler, 248 Ill. App. 3d 749, 751, 618 N.E.2d
1311 (1993); In re Parentage of Mayberry, 222 Ill. App. 3d 1008,
1011, 584 N.E.2d 533 (1991); Department of Public Aid ex rel.
Skelton v. Liesman, 218 Ill. App. 3d 437, 439-40, 578 N.E.2d 310
(1991); Maller v. Cohen, 176 Ill. App. 3d 987, 991, 531 N.E.2d
1029 (1988). Support for the holding is found in the differing
interests of the minor and the mother, in addition to the
differing statute of limitations for the minor and the mother to
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assert paternity actions. Liesman, 218 Ill. App. 3d at 441.
Moreover, it has been noted in dissolution proceedings that
a minor is not in privity with his mother when the minor’s
interests are not represented by a GAL. See In re Parentage of
Rodgers, 279 Ill. App. 3d 648, 654, 665 N.E.2d 36 (1996); In re
Marriage of Klebs, 196 Ill. App. 3d 472, 483, 554 N.E.2d 298
(1990); Simcox, 131 Ill. 2d at 499 (Ryan, J., specially
concurring). But see In re Parentage of Griesmeyer, 302 Ill.
App. 3d 905, 915-16, 707 N.E.2d 72 (1998) (the minor was barred
from relitigating the issue of paternity when the minor was
represented by a GAL during dissolution proceedings where
paternity was litigated). M.M. was not represented by a GAL when
Robert M. and Shante M. signed the VAP. The GAL was first
appointed to represent M.M. in this case on July 28, 2009. M.M.
was not estopped from filing her complaint.
We now turn to the statute at issue. The clear language of
the statute demonstrates that M.M., by and through her GAL, had
standing to bring the disputed action. Section 7(b) provides, in
relevant part: “[a]n action to declare the non-existence of the
parent and child relationship may be brought by the child, the
natural mother, or a man presumed to be the father under
subdivision (a)(1) or (a)(2) of Section 5 of this Act.” 750 ILCS
45/7(b) (West 2008). The statute plainly says that a child may
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bring a petition to establish nonpaternity. The statute does not
restrict the child’s ability to do so.
Robert M.’s argument to the contrary is misinformed. Robert
M. contends that M.M. could not bring the disputed action because
Robert M. is not presumed to be the father pursuant to section
5(a)(1) or (a)(2) of the Parentage Act; rather, Robert M. is
M.M.’s legal father pursuant to section 5(a)(3) as a result of
the VAP. The statutory language relied on by Robert M., however,
only modifies a father’s ability to bring an action to declare
the nonexistence of a parent-child relationship. It does not
restrict the child’s rights. An absurd result would occur if we
read the statute as suggested by Robert M. Robert M.’s
interpretation misses the mark and is in no way confirmed by the
plain language of the statute. The language of the statute does
not support Robert M.’s interpretation. When the statutory
language is clear and unambiguous, we may not resort to other
constructive aids. People v. Wooddell, 219 Ill. 2d 166, 171, 847
N.E.2d 117 (2006). Further, “we will not read exceptions,
conditions, or limitations into a statute that the legislature
did not express if the statutory language is clear and
unambiguous,” as it is here. In re Christopher K., 217 Ill. 2d
348, 364, 841 N.E.2d 945 (2005).
The cases relied upon by Robert M. are distinguishable:
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Smith involves section 7(b-5) of the Parentage Act and the
ability of a man who signed a VAP to bring an action to declare
the nonexistence of a parent-child relationship (Smith, 212 Ill.
2d at 407); and In re Parentage of G.E.M., 382 Ill. App. 3d 1102,
890 N.E.2d 944 (2008), the trial court held that a mother could
not challenge the paternity of a man with whom she signed a VAP
where neither party timely rescinded the VAP and the man did not
allege it was signed under fraud, duress, or mistake of fact.
G.E.M., 382 Ill. App. 3d at 1113.
We need not address Robert M.’s bare contention that the
trial court was prejudiced against him. Robert M. fails to
present any argument or cite to any legal authority to show that
the portion of the trial proceedings quoted at length
demonstrates the trial court was prejudiced against him such that
the proceedings were unfair. Robert M.’s contention violated
Supreme Court Rule 341(h)(7) and is therefore waived. 210 Ill.
2d R. 341(h)(7). Nevertheless, our review of the record does not
support the allegation that the trial court was prejudiced
against Robert M.
CONCLUSION
We affirm the judgment of the trial court.
Affirmed.
HALL, P.J., and PATTI, J., concur.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
In re M.M., a Minor,
Respondent-Appellee
(The People of the State of Illinois,
Petitioner-Appellee,
v.
Robert M.,
Respondent-Appellant).
No. 1-09-3468
Appellate Court of Illinois
First District, FIRST DIVISION
May 21, 2010
Justice Bertina E. Lampkin authored the opinion of the court:
Presiding Justice Hall and Justice Patti concur.
Appeal from the Circuit Court of Cook County.
The Hon. Helaine L. Berger, Judge Presiding.
COUNSEL FOR RESPONDENT-APPELLANT
Steven O. Ross, Chicago, IL 60614
COUNSEL FOR MINOR-RESPONDENT-APPELLEE
Bruce H. Bornstein, Chicago, IL 60603
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