In re Parentage of Scarlett Z.-D.

Illinois Official Reports
Appellate Court
In re Parentage of Scarlett Z.-D., 2014 IL App (2d) 120266-B
Appellate Court In re PARENTAGE OF SCARLETT Z.-D., a Minor (James R.D.,
Caption Petitioner-Appellant, v. Maria Z., Respondent-Appellee).
District & No. Second District
Docket No. 2-12-0266
Filed May 22, 2014
Held In an appeal from the dismissal of petitioner’s action seeking a
(Note: This syllabus declaration of parentage, custody, visitation and child support as to the
constitutes no part of the adopted daughter of respondent, his former fiancée based on his lack
opinion of the court but of standing, where the Illinois Supreme Court entered a supervisory
has been prepared by the order directing the appellate court to reconsider its affirmation of the
Reporter of Decisions dismissal in light of the Illinois Supreme Court’s recent decision in
for the convenience of DeHart announcing the equitable adoption doctrine, the appellate
the reader.)
court remanded the cause to the trial court for additional factual
findings, pursuant to the equitable adoption doctrine, and a
determination of whether there is a “need in justice for this
extraordinary equitable intervention,” with or without additional
evidence or argument, or both, on the issue of equitable adoption and
then either proceed to consider the child’s best interests based on a
finding that petitioner has standing under the equitable adoption
doctrine or again dismiss his petition.
Decision Under Appeal from the Circuit Court of Du Page County, No. 08-F-451; the
Review Hon. Timothy J. McJoynt, Judge, presiding.
Judgment Affirmed in part and vacated in part; cause remanded with directions.
Counsel on Keith E. Roberts, Jr., of Roberts P.C., of Wheaton, and Camilla B.
Appeal Taylor, of Lamda Legal Defense & Education Fund, Inc., of Chicago,
and Thomas W. Ude, Jr., of Lamda Legal Defense & Education Fund,
Inc., of New York, New York, for appellant.
David W. Schopp, of Law Office of David W. Schopp, of Aurora, for
appellee.
John Knight, of Roger Baldwin Foundation of ACLU, Inc., and Ari Z.
Cohn and Frank M. Dickerson III, both of Mayer Brown LLP, both of
Chicago, for amicus curiae American Civil Liberties Union.
Hugh S. Balsam and Andy J. Miller, both of Locke Lord LLP, of
Chicago, for other amici curiae.
Joseph M. Beck, of Beck & Houlihan, P.C., of Wheaton, guardian
ad litem.
Panel JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Justice Jorgensen concurred in the judgment and opinion.
Justice McLaren specially concurred in part and dissented in part, with
opinion.
OPINION
¶1 Petitioner, James R.D. (Jim), sought a declaration of parentage, custody, visitation, and
child support regarding Scarlett Z.-D., the adopted daughter of his former fiancée,
respondent, Maria Z. He appeals from the trial court’s dismissal under section 2-615 of the
Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2012)) of his claims brought under
common-law contract theories and from the court’s denial, following trial, of his claims
brought under the equitable parent doctrine. Initially, we affirmed. In re Parentage of
Scarlett Z.-D., 2012 IL App (2d) 120266. Jim filed a petition for leave to appeal with the
Illinois Supreme Court. The supreme court denied his petition but also entered the following
supervisory order:
“In the exercise of this Court’s supervisory authority, the Appellate Court, Second
District, is directed to vacate its order in James R.D. v. Maria Z., case No. 2-12-0266
[(In re Parentage of Scarlett Z.-D., 2012 IL App (2d) 120266)]. The Appellate Court
is instructed to reconsider its decision in light of this Court’s opinion in DeHart v.
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DeHart, [2013 IL 114137], to determine if a different result is warranted.” In re
Parentage of Scarlett Z.-D., No. 115000 (Ill. May 29, 2013).
In accordance with our supreme court’s directive, we vacate our previous order in this case.
We conclude that a different result is not warranted under the law as it existed at the time of
our previous order. However, to the extent of any change in the law, our reconsideration is
hindered by the lack of factual findings by the trial court, which did not have the benefit of
DeHart when it rendered its ruling. For the following reasons, we affirm the trial court’s
dismissal of counts III through VI, vacate its order denying counts I and II, and remand with
directions for further proceedings.
¶2 I. BACKGROUND
¶3 Jim and Maria began living together as a couple in 1999. They became engaged in 2000
or 2001. In early 2003, Maria went to Slovakia to visit family. While there, she met Scarlett,
a 32-year-old orphan girl. Maria and Jim decided that Maria would adopt Scarlett, and
Maria commenced the process. Under Slovakian law, Jim was not permitted to adopt
Scarlett, because he was neither a Slovakian national nor married to Maria. During the
year-long adoption process, Maria lived in Slovakia. Jim remained in the United States, but
he was involved in the process and traveled to Slovakia approximately five times during that
period. In 2004, Maria returned to the United States with Scarlett, and the parties lived
together with Scarlett as a family. The parties never married, and neither took any steps to
obtain recognition of the adoption in Illinois. Jim did not legally adopt Scarlett.
¶4 By August 2008, the parties’ relationship had deteriorated, and Maria moved out with
Scarlett. On August 22, 2008, Jim filed a petition for declaration of parental rights. On May
11, 2009, Jim filed his second amended petition, at issue here. In count I, Jim requested a
declaration of parentage and an order granting the parties joint legal and physical custody or,
alternatively, granting him primary custody with reasonable visitation for Maria. In count II,
Jim sought an equitable division of child support between the parties. Counts III through VI,
entitled breach of oral agreement, promissory estoppel, breach of implied contract in fact,
and breach of implied contract in law, respectively, each prayed for relief in the form of
custody, visitation, and child support determinations.
¶5 On May 29, 2009, Maria filed a section 2-615 motion to dismiss, alleging, inter alia, that
Jim’s petition failed to state a cause of action because it did not address the threshold
question of Jim’s standing under either section 601(b)(2) of the Illinois Marriage and
Dissolution of Marriage Act (Dissolution Act) (750 ILCS 5/601(b)(2) (West 2012)) or
section 7 of the Illinois Parentage Act of 1984 (Parentage Act of 19841) (750 ILCS 45/7
(West 2012)), providing for actions to determine the existence of a father-child relationship.
Jim filed a response, arguing that a section 2-615 motion was not the proper vehicle to raise
the issue of standing and that, therefore, Maria had waived her standing argument. The trial
court entered an order allowing Maria to file a memorandum in support of her section 2-615
motion, if she so desired. Within the time allowed for that memorandum, Maria instead filed
a section 2-619 (735 ILCS 5/2-619 (West 2012)) motion to dismiss, asserting lack of
standing under section 601 of the Dissolution Act, based on the affirmative matter that
1
The Parentage Act of 1984 is not to be confused with the Illinois Parentage Act (750 ILCS 40/1
et seq. (West 2012)), which governs cases involving artificial insemination only.
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Scarlett had always been in Maria’s physical custody since her adoption. Jim moved to strike
Maria’s section 2-619 motion.
¶6 On August 25, 2009, the trial court heard argument on Jim’s motion to strike Maria’s
section 2-619 motion. In addition to arguing that the motion was untimely, Jim contended
that Maria improperly raised the affirmative defense of standing in her section 2-615 motion
to dismiss and had, therefore, waived the standing defense. The court began by asking Jim’s
counsel, “So if I let [Maria’s counsel] replead and relabel it [section 2-]619, are we right back
where we started?” After hearing the parties’ arguments, the court noted that “standing is the
linchpin of the attacking motions that were up for hearing.” The court reasoned that,
“whether it’s a 2-615 or a 2-619, I think it’s been adequately pled in a timely fashion.” The
court found that the issue of standing was not a surprise to Jim. The court concluded that
“[t]here’s been no waiver.” The court then offered Jim the option of allowing Maria to refile
her section 2-615 motion as a section 2-619 motion so that Jim could supplement his
response “with affidavits and the like.” Jim’s counsel asked if a temporary visitation order
could be entered if they chose to replead, and the court said no. Maria’s counsel reminded the
court that Maria had already filed the section 2-619 motion. Jim then opted to accept the
additional time offered to submit affidavits and file a response to Maria’s section 2-619
motion, which he did.
¶7 On October 7, 2009, the trial court heard argument on both of Maria’s motions to
dismiss. The court denied Maria’s section 2-619 motion in its entirety. With respect to
Maria’s section 2-615 motion, the court denied the motion as to counts I and II. However, the
court granted the motion to dismiss counts III through VI, concluding that there was no
common-law cause of action for paternity, that the claims did not meet the elements of
contract law, and that the purported contracts “could be void [as] against public policy.”
¶8 From that portion of the court’s October 7, 2009, order denying her section 2-619 motion
to dismiss, Maria filed a petition for leave to appeal to this court. We denied the petition as
untimely. In re Parentage of Scarlett Z-D., No. 2-09-1280 (2009) (unpublished order under
Supreme Court Rule 23).
¶9 Thereafter, the case proceeded on counts I and II of Jim’s petition, in which Jim
requested a declaration of parentage, custody, and visitation (count I) and child support
(count II). Jim asserted that he was Scarlett’s parent under the theories of de facto parent,
equitable parent, and psychological parent or that he stood in loco parentis to Scarlett. Maria
filed her response to Jim’s petition, raising the affirmative defense of standing. The court
appointed a guardian ad litem (GAL) and ordered the parties to attend mediation. On the
GAL’s motion, the court ordered that Jim have supervised visitation with Scarlett. Scarlett
attended counseling. The court appointed a custody evaluator. Later, the court appointed a
visitation facilitator to facilitate visits and make a report of her observations.
¶ 10 Trial commenced on May 10, 2011, spanning 17 days of testimony over 7 months. The
parties presented extensive evidence. The witnesses included the parties, Dr. Robert Shapiro
(the custody evaluator), Dr. Margot Warren (the visitation facilitator), and Joseph Beck (the
GAL), as well as many friends, neighbors, and relatives of the parties. Numerous exhibits
were admitted, including Dr. Shapiro’s custody evaluation, Dr. Warren’s observation notes,
family photographs and videos, and Scarlett’s school records and art work.
¶ 11 The parties rested their respective cases on December 16, 2011. The court granted
Maria’s previously filed motion for an in camera interview of Scarlett and conducted the
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interview that day. On January 23, 2012, the parties submitted written closing arguments. On
February 9, 2012, the court granted Maria’s motion to supplement her closing argument with
the February 2, 2012, decision in In re Marriage of Mancine, 2012 IL App (1st) 111138,
appeal denied and judgment vacated by Mancine v. Gansner, No. 113978 (Ill. May 29, 2013)
(directing the First District to vacate its order and reconsider in light of DeHart).
¶ 12 The trial court entered its written opinion and order on February 29, 2012. The court
found that “for a long time during and after the adoption of [Scarlett], Jim and Maria lived
together with the child as an intact family unit as if they were bound legally.” The court
found that Jim and Maria planned and participated in the adoption together and that Jim paid
for it all and supported Maria during the process. The court found that Jim never adopted
Scarlett but that the parties had “discussed” it. The court stated, “The reasons for these
inactions are basically unknown except for the ‘falling out’ Jim and Maria had some time
later.” The court found that, for four years or more, Scarlett lived with Jim, called him
“daddy,” and looked to him as a “father figure.” The court concluded that Jim was “a fit and
proper person” to have visitation or custody. The court found that, after Maria separated from
Jim and took Scarlett with her, Scarlett “expressed a desire to continue to see Jim[,] and
Maria prevented and blocked such contact.” The court believed that the GAL’s request for
visitation early in the case reflected Scarlett’s desires at that time. The court found
“considerable evidence that taking Jim out of [Scarlett’s] life in 2008 was not good for
[her].” The court noted that Dr. Warren, who had observed over 50 visits between Jim and
Scarlett, and Dr. Shapiro, who had evaluated Scarlett, both concluded that Jim and Scarlett
shared a bond and that Maria had alienated Scarlett from Jim. The court stated that it
disregarded the in camera interview with Scarlett because it “became immediately obvious to
the court that the child was committed to telling the court that she no longer want[ed] to see
Jim.” The court concluded that Scarlett had been “coached” and “corrupted” and that these
were not “her true thoughts.” The court said, “[I]t is obvious that the court is unhappy with
Maria’s conduct in this case and is quite sympathetic to Jim’s position. And more
importantly, the court is very concerned that finding against Jim will take him out of
[Scarlett’s] life and that this will be bad for [her] and not in her best interests.”
¶ 13 Still, the court noted that it was “bound to follow the law as it exists now” and that,
despite its concerns regarding best interests, it could not, under current law, reach that issue
without first finding that Jim had standing. The court observed that “the standing issue never
really changed in the trial.” The court found that “Maria correctly argue[d] she is the sole
parent and Jim has no statutory legal standing.” The court also noted Maria’s constitutional
right to parent “the way she chooses–good or bad,” but expressed concern about Scarlett’s
right “to have a decent life.” The court remarked that “these situations *** need legislation
badly” but that it was “without authority to invent new common[-]law theories or somehow
create judicial legislation.” The court concluded that, especially under Mancine, it had no
basis to find that Jim had standing. The court denied counts I and II of Jim’s petition and
vacated all of its prior orders regarding visitation and counseling.
¶ 14 Also on February 29, 2012, the trial court denied Jim’s oral motion for a stay of that
portion of its order vacating all prior visitation and counseling orders. Jim timely appealed
from the court’s denial of his petition. He subsequently filed an emergency motion in this
court pursuant to Illinois Supreme Court Rule 305(d) (eff. July 1, 2004), seeking to stay the
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trial court’s order vacating its previous orders for visitation and counseling, which we
granted.2
¶ 15 Thereafter, we granted leave to the American Civil Liberties Union of Illinois and,
jointly, to the Family Institute at Northwestern University, the Chicago Appleseed Fund for
Justice, and the Family Equality Council, to file briefs as amici curiae in support of Jim.
Following our supreme court’s supervisory order, Maria filed an unopposed motion to
establish a briefing schedule, which we granted. Jim timely filed an opening and reply brief
on reconsideration; Maria timely filed a response brief on reconsideration.
¶ 16 II. ANALYSIS
¶ 17 A. Counts I and II: Parentage, Custody, Visitation, and Support Claims
¶ 18 We begin our analysis by reviewing the arguments originally raised in the initial briefing.
After establishing that foundation, we will reconsider our decision and determine if a
different result is warranted in light of DeHart.
¶ 19 This case centers on the issue of standing. Section 601(b) of the Dissolution Act provides
that a custody proceeding may be commenced by a parent (750 ILCS 5/601(b)(1) (West
2012)) or “by a person other than a parent *** but only if [the child] is not in the physical
custody of one of his parents” (750 ILCS 5/601(b)(2) (West 2012)). Our supreme court has
interpreted section 601(b)(2) as a standing requirement. In re R.L.S., 218 Ill. 2d 428, 434-35
(2006). The Dissolution Act does not define the term “parent.” The Parentage Act of 1984
establishes a “statutory mechanism that serves to legally establish parent and child
relationships in Illinois.” (Internal quotation marks omitted.) J.S.A. v. M.H., 224 Ill. 2d 182,
198 (2007). Section 2 of the Parentage Act of 1984 provides that a “ ‘parent and child
relationship’ means the legal relationship existing between a child and his natural or adoptive
parents incident to which the law confers or imposes rights, privileges, duties, and
obligations.” 750 ILCS 45/2 (West 2012). In the context of a nonparent seeking custody
under section 601(b)(2) of the Dissolution Act, standing is a threshold issue that the trial
court must decide before proceeding to a best-interests determination. In re Custody of
M.C.C., 383 Ill. App. 3d 913, 917 (2008) (stating that a nonparent must meet section
601(b)(2)’s standing requirement before the trial court may proceed to the merits of the
custody petition).
¶ 20 Section 601(b)(2)’s standing requirement is “designed to ‘ensure[ ] that the superior right
of natural parents to the care and custody of their children is safeguarded.’ ” In re A.W.J., 197
Ill. 2d 492, 497 (2001) (quoting In re Petition of Kirchner, 164 Ill. 2d 468, 491 (1995),
abrogated on other grounds by R.L.S., 218 Ill. 2d at 444-47). The superior rights doctrine
recognizes parents’ interest in the care, custody, and control of their children, which is
“ ‘perhaps the oldest of the fundamental liberty interests.’ ” R.L.S., 218 Ill. 2d at 438 (quoting
Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality op.)). Fit parents enjoy a presumption
that they act in the best interests of their children. R.L.S., 218 Ill. 2d at 439 (citing Troxel,
530 U.S. at 68). “[S]o long as a parent adequately cares for his or her children (i.e., is fit),
there will normally be no reason for the State to inject itself into the private realm of the
2
We lifted this stay when we filed our previous opinion on August 30, 2012. Scarlett Z.-D., 2012 IL
App (2d) 120266, ¶ 58.
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family to further question the ability of that parent to make the best decisions concerning the
rearing of that parent’s children.” Troxel, 530 U.S. at 68-69 (holding a Washington
grandparent visitation statute unconstitutional as applied because it allowed the petitioners to
proceed straight to a best-interests analysis without any deference accorded to the parent’s
decision to limit grandparent visitation).
¶ 21 Indeed, the superior rights doctrine permeates the statutory schemes governing family
law in Illinois. See R.L.S., 218 Ill. 2d at 435 (observing that the superior rights doctrine is
incorporated into the Probate Act’s provision allowing appointment of a guardian only if the
minor does not have a parent who “ ‘is willing and able to make and carry out day-to-day
child care decisions concerning the minor’ ” (quoting 755 ILCS 5/11-5(b) (West 2004)));
In re A.L., 2012 IL App (2d) 110992, ¶¶ 14-16 (noting that, because parents’ fundamental
liberty interests were implicated in termination-of-parental-rights proceedings, the Juvenile
Court Act of 1987 (705 ILCS 405/1-1 et seq. (West 2004)) requires that the State must first
prove by a preponderance of the evidence that a child is neglected, abused, or dependent,
then prove by clear and convincing evidence that the parent is unfit, and finally the court
must determine that termination of parental rights is in the child’s best interest); In re
Parentage of Unborn Child Brumfield, 284 Ill. App. 3d 950, 954 (1996) (holding that section
601(b)(2)’s standing requirement in the Dissolution Act applied to parties in cases under the
Parentage Act of 1984).
¶ 22 1. Waiver3
¶ 23 Jim initially argued in his original briefs that Maria waived the issue of standing by
failing to file a timely section 2-619 motion. “A motion to dismiss pursuant to section 2-619
[of the Code] admits the legal sufficiency of a complaint, but asserts affirmative matters that
avoid or defeat the allegations contained in the complaint.” (Internal quotation marks
omitted.) Gallagher v. Union Square Condominium Homeowner’s Ass’n, 397 Ill. App. 3d
1037, 1040 (2010). Under section 2-615 of the Code, a complaint may be dismissed for
failure to state a cause of action because of factual or legal insufficiency. Cummings v. City
of Waterloo, 289 Ill. App. 3d 474, 478 (1997).
¶ 24 Here, Maria alleged in her section 2-615 motion that Jim’s petition did not state a cause
of action because it failed to address the threshold issue of standing under either the
Dissolution Act or the Parentage Act of 1984. We cannot say that it was improper to raise the
standing issue in a section 2-615 motion, 4 because the issue was raised as a factual
insufficiency on the face of the petition, namely, that Jim failed to allege any facts that would
have brought him within the purview of either the Dissolution Act or the Parentage Act of
3
Because the parties use the term “waiver,” we do as well. However, we recognize that “[w]hile
waiver is the voluntary relinquishment of a known right, forfeiture is the failure to timely comply with
procedural requirements.” Buenz v. Frontline Transportation Co., 227 Ill. 2d 302, 321 n.2 (2008).
4
We are aware of cases holding that lack of standing under section 601(b)(2) is an affirmative
defense that is waived if not raised in a timely section 2-619 motion to dismiss. See, e.g., In re Custody
of K.P.L., 304 Ill. App. 3d 481, 487 (1999). However, we are convinced that, under the circumstances
presented here, Maria could properly raise standing in a section 2-615 motion. In any event, the trial
court had discretion to allow Maria’s tardy section 2-619 motion because it did not prejudice Jim.
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1984. See Cummings, 289 Ill. App. 3d at 479 (“[A] factually insufficient complaint fails to
allege sufficient facts essential to the cause of action.”). That Maria subsequently raised lack
of standing, based on the affirmative matter that Scarlett was in Maria’s physical custody, in
a section 2-619 motion, although arguably untimely and filed without leave, does not change
the fact that the issue of standing had already been raised. We agree with the trial court that
standing was the “linchpin” of both motions to dismiss and that “[t]here’s been no waiver.”
We note that Jim does not, indeed cannot, argue that he was prejudiced, because, as the trial
court pointed out, the issue of standing was clearly at issue and not a surprise. Accordingly,
Jim’s waiver argument has no merit. See In re Custody of McCarthy, 157 Ill. App. 3d 377,
380-81 (1987) (holding that, where there was no prejudice, the trial court did not abuse its
discretion in allowing a tardy motion to dismiss based on a defense not raised in the answer).
¶ 25 2. Equitable Estoppel
¶ 26 Jim next contends that Maria should have been equitably estopped from challenging
Jim’s standing. He maintains that equitable estoppel applies because Maria actively
encouraged Jim and Scarlett to form a father-child relationship and held them out to the
world as such. We review under the manifest-weight-of-the-evidence standard the trial
court’s determination that equitable estoppel did not apply. Morgan Place of Chicago v. City
of Chicago, 2012 IL App (1st) 091240, ¶ 33.
¶ 27 Our supreme court has listed the factors necessary to prove equitable estoppel:
“(1) the other person misrepresented or concealed material facts; (2) the other person
knew at the time he or she made the representations that they were untrue; (3) the
party claiming estoppel did not know that the representations were untrue when they
were made and when they were acted upon; (4) the other person intended or
reasonably expected that the party claiming estoppel would act upon the
representations; (5) the party claiming estoppel reasonably relied upon the
representations in good faith to his or her detriment; and (6) the party claiming
estoppel would be prejudiced by his or her reliance on the representations if the other
person is permitted to deny the truth thereof.” Geddes v. Mill Creek Country Club,
Inc., 196 Ill. 2d 302, 313-14 (2001).
“Without the misrepresentation or concealment of a material fact, equitable estoppel does not
apply.” Parks v. Kownacki, 193 Ill. 2d 164, 180 (2000) (citing McInerney v. Charter Golf,
Inc., 176 Ill. 2d 482, 492 (1997)). Although fraud is an essential element of equitable
estoppel, “the representation need not be fraudulent in the strict legal sense or done with an
intent to mislead or deceive.” Geddes, 196 Ill. 2d at 314. “[I]t is sufficient that a fraudulent or
unjust effect results from allowing another person to raise a claim inconsistent with his or her
former declarations.” Geddes, 196 Ill. 2d at 314 (holding that the plaintiffs were estopped
from bringing their claims of intentional trespass and private nuisance based on golf balls
entering their property where they previously had agreed to the location of the defendants’
fairway).
¶ 28 Here, Jim did not identify a single fact that Maria misrepresented. The record contains no
evidence that Maria misrepresented Jim as Scarlett’s biological or adoptive father. Jim was
aware at all times that he was not Scarlett’s biological father, that the Slovakian adoption did
not pertain to him, and that formal adoption in Illinois would be necessary. Although Jim
testified that it was the parties’ intent that both of them would pursue adoption of Scarlett in
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this country, a promise to do something in the future does not constitute a factual
misrepresentation (see Gilliland v. Allstate Insurance Co., 69 Ill. App. 3d 630, 634 (1979)
(“To invoke the doctrine of [equitable] estoppel, a false representation must generally relate
to an existing or past event, not to a promise concerning a future happening.”)).
¶ 29 Moreover, that Maria encouraged a father-daughter relationship between Jim and Scarlett
and allowed Jim to become, as the trial court found, a father figure to Scarlett does not
compel the conclusion that it is somehow unjust to allow Maria to assert Jim’s lack of
standing. Maria’s claim that Jim lacked standing was not “inconsistent with *** her former
declarations” (Geddes, 196 Ill. 2d at 314). Maria’s conduct and declarations in treating Jim
like Scarlett’s father occurred when the parties were engaged to be married. In short, Jim’s
relationship with Scarlett was contingent upon his relationship with Maria, Scarlett’s only
legal parent. Thus, Maria’s assertion–when the parties’ relationship had terminated–that Jim
was not a legal parent was not inconsistent with her prior behavior. Because the record
demonstrates that there was no misrepresentation of a material fact, Jim failed to satisfy the
first element of equitable estoppel. Accordingly, the trial court’s conclusion that equitable
estoppel did not apply was not against the manifest weight of the evidence.
¶ 30 Jim cites Geddes for the proposition that “[i]t is the duty of a person having a right, and
seeing another about to commit an act infringing upon it, to assert his right. He cannot by his
silence induce or encourage the commission of the act and then be heard to complain.”
(Internal quotation marks omitted.) Geddes, 196 Ill. 2d at 314. As explained above, the rights
at issue here are the rights of a parent to direct the upbringing of his or her child and to make
decisions about the child’s care. See Troxel, 530 U.S. at 65. Jim developed a relationship
with Scarlett, with Maria’s consent and encouragement, while the parties were engaged.
After the parties’ relationship terminated, Maria decided not to allow Scarlett to see Jim
anymore. When Jim filed his petition seeking custody and visitation–against Maria’s
wishes–she timely asserted her rights.
¶ 31 In support of his equitable estoppel argument, Jim relies on In re Marriage of Schlam,
271 Ill. App. 3d 788 (1995). In Schlam, the biological mother of a child married a man, not
the child’s father, when the child was about six years old. The wife represented the husband
as the child’s father, and the husband and child formed a close father-daughter relationship.
When the parties divorced about six years later, they entered into a joint parenting agreement,
which was incorporated into the judgment of dissolution. Schlam, 271 Ill. App. 3d at 791. For
about two years thereafter, the husband provided financially for the child and exercised his
joint custody rights. Schlam, 271 Ill. App. 3d at 791-92. After a dispute between the parties,
the husband filed a petition alleging that the wife violated the joint parenting agreement, and
the wife responded with a petition to declare the agreement void ab initio. Schlam, 271 Ill.
App. 3d at 790. The appellate court held that the wife was equitably estopped from
challenging the agreement, because the husband had obligated himself to pay child support in
reliance on the wife’s intentional representation to the trial court that the husband would
remain a part of the child’s life. Schlam, 271 Ill. App. 3d at 794-95.
¶ 32 Schlam is inapposite. The court in Schlam applied the doctrine of equitable estoppel not
to preclude the wife from challenging standing, as Jim seeks to do here, but rather to preclude
the wife from challenging the parties’ parenting agreement. Moreover, estoppel was based
not on the wife’s conduct in holding the husband out as the child’s father, but on her conduct
in representing to the trial court that joint custody was in the child’s best interests, thus
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implicitly representing that the husband had standing to seek joint custody (Schlam, 271 Ill.
App. 3d at 796). In contrast, here, Maria never made any representation to the trial court of a
father-daughter relationship but timely asserted Jim’s lack of standing. In Schlam, because
the wife’s representations were made at the end of the parties’ relationship and incorporated
into the trial court’s dissolution order, it was reasonable to believe that the wife’s
representations constituted her permanent intent. In the present case, Maria made no
representations regarding a continued relationship between Scarlett and Jim following the
parties’ separation. That Maria allowed Jim to see Scarlett for a few months following the
separation is indicative of a gratuitous undertaking that she had the right to revoke. See In re
Marriage of Engelkens, 354 Ill. App. 3d 790, 798 (2004) (holding that the father was not
estopped from challenging the parties’ temporary agreed order regarding visitation for the
stepmother, who had included the child on her health insurance for years in “a gratuitous
undertaking”).
¶ 33 3. Standing Under Equitable Parent Doctrine
¶ 34 We now turn to Jim’s argument that the trial court erred in denying counts I and II of his
petition, for lack of standing. Jim does not dispute the trial court’s conclusion that he lacks
statutory standing. Because he is not Scarlett’s biological or legally adoptive father, Jim does
not meet the definition of a parent under section 2 of the Parentage Act of 1984. Neither does
Jim meet the standing requirement for nonparents in section 601(b)(2) of the Dissolution Act,
since Scarlett has always been in Maria’s physical custody. Rather, Jim contends that, based
on his parent-child relationship with Scarlett, formed with Maria’s consent and
encouragement, he properly sought a declaration of parentage, custody, visitation, and child
support under the theories of equitable parent, de facto parent, psychological parent, and
in loco parentis.5
¶ 35 Generally, we review de novo a trial court’s determination on standing. In re
Guardianship of K.R.J., 405 Ill. App. 3d 527, 535 (2010). Although the trial court heard
extensive evidence and made factual findings, which we would review under the
manifest-weight-of-the-evidence standard (K.R.J., 405 Ill. App. 3d at 535), the parties do not
challenge the court’s factual findings. Thus, the standing issue presented here is purely a
question of law, which we review de novo. See In re Avery S., 2012 IL App (5th) 100565,
¶ 13.
¶ 36 As discussed above, the legislative scheme in section 601(b)(2) of the Dissolution Act
permitting nonparents to seek custody “only if [the child] is not in the physical custody of one
of his parents” serves to prevent unconstitutional state interference with parents’ fundamental
liberty interests unless necessary to protect the health, safety, and welfare of children.
(Emphasis added.) 750 ILCS 5/601(b)(2) (West 2012); see Wickham v. Byrne, 199 Ill. 2d
309, 316-17 (2002); In re Custody of T.W., 365 Ill. App. 3d 1075, 1084 (2006). Jim’s
assertion of standing is based upon his alleged status as an equitable parent. In essence, Jim
argues that he is not required to meet the nonparent standing requirement, because he is a
functional parent–an equitable parent. See 750 ILCS 5/601(b)(1) (West 2012) (providing that
a custody proceeding may be commenced by a parent). However, neither the legislature nor
5
For the sake of simplicity, we will refer to these doctrines collectively as the equitable parent
doctrine, as they are generally used interchangeably to refer to persons functioning as parents.
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the Illinois courts have ever recognized the equitable parent doctrine. In re T.P.S., 2012 IL
App (5th) 120176, ¶ 64. Accordingly, the trial court properly concluded that it had no basis
upon which to find that Jim had standing.
¶ 37 In support of his position, Jim relies on In re Parentage of M.J., 203 Ill. 2d 526 (2003),
and T.P.S. In M.J., the trial court dismissed a biological mother’s complaint against her
former paramour in which she sought to establish paternity and impose child support. M.J.,
203 Ill. 2d at 529. The mother alleged that her paramour had orally consented to her being
artificially inseminated and had agreed to support the twins born as a result. M.J., 203 Ill. 2d
at 530-31. Upon discovering that the man was married, the mother filed suit to establish
paternity and to impose a support obligation, seeking relief both under common-law theories
of breach of an oral agreement and promissory estoppel and under the Illinois Parentage Act
(750 ILCS 40/1 et seq. (West 1998)). M.J., 203 Ill. 2d at 531. The appellate court affirmed,
but the supreme court reversed as to the common-law claims. M.J., 203 Ill. 2d at 529.
¶ 38 The supreme court first explained that the legislature enacted the Illinois Parentage Act
“to define the legal relationships of a child born to a wife and husband requesting and
consenting to *** artificial insemination.” (Internal quotation marks omitted.) M.J., 203 Ill.
2d at 533. Based on the statute’s express language, the court concluded that the Illinois
Parentage Act’s primary purpose was to “provide a legal mechanism for a husband and wife
to obtain donor sperm for use in artificial insemination and to ensure that a child is
considered the legitimate child of the husband and wife requesting and consenting to the
artificial technique.” M.J., 203 Ill. 2d at 534; see 750 ILCS 40/2 (West 1998) (providing that
a child born as the result of artificial insemination “shall be considered at law in all respects
the same as a naturally conceived legitimate child”). Because the statutory language
unequivocally required written consent in order to establish the parent-child relationship (750
ILCS 40/3(a) (West 1998)), the court held that failure to obtain the paramour’s written
consent precluded the mother’s child support claims brought under the Illinois Parentage Act.
M.J., 203 Ill. 2d at 535. Given its holding, the court noted that it did not need to determine
whether the Illinois Parentage Act applied to unmarried persons. M.J., 203 Ill. 2d at 537.
¶ 39 The court then turned to the mother’s common-law claims for child support. M.J., 203 Ill.
2d at 537. The court noted Illinois’s strong public policy “recognizing the right of every child
to the physical, mental, emotional, and monetary support of his or her parents.” M.J., 203 Ill.
2d at 539 (citing 750 ILCS 45/1.1 (West 1998)). The court observed that “statutes and case
law do not equivocate in imposing child support obligations for other children born out of
wedlock.” M.J., 203 Ill. 2d at 541. The court pointed out that the mother had alleged facts
demonstrating the paramour’s “deliberate course of conduct with the precise goal of causing
the birth of these children.” M.J., 203 Ill. 2d at 541. The court reasoned that “if an unmarried
man who biologically causes conception through sexual relations without the premeditated
intent of birth is legally obligated to support a child, then the equivalent resulting birth of a
child caused by the deliberate conduct of artificial insemination should receive the same
treatment in the eyes of the law.” M.J., 203 Ill. 2d at 541. Based on this reasoning, the court
held that the mother’s common-law claims for child support could proceed. M.J., 203 Ill. 2d
at 541. The court limited its holding “to the unique circumstances of this case” (M.J., 203 Ill.
2d at 542), explaining that “[c]laims of parentage and support of children produced as a result
of assisted reproductive technologies are unique” (M.J., 203 Ill. 2d at 541).
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¶ 40 In T.P.S., the Appellate Court, Fifth District, relied heavily on M.J. to allow common-law
custody and visitation claims under contract and promissory-estoppel theories for children
born by artificial insemination. In T.P.S., a lesbian couple planned to have children by
artificial insemination. They agreed that the respondent would be artificially inseminated
(because she was the younger of the two and had health insurance) and that the petitioner
would be the children’s primary caregiver. T.P.S., 2012 IL App (5th) 120176, ¶ 6. Two
children were born, and the parties functioned as equal coparents. T.P.S., 2012 IL App (5th)
120176, ¶¶ 7, 12. The respondent agreed that the petitioner was to “have legal parental rights
to the children that were equal to hers.” T.P.S., 2012 IL App (5th) 120176, ¶ 8. Ultimately,
the parties’ relationship deteriorated, and the respondent subsequently denied the petitioner
contact with the children. T.P.S., 2012 IL App (5th) 120176, ¶ 13. The petitioner filed suit
seeking a declaration of parentage, custody, visitation, and child support under various
common-law theories: contract, promissory estoppel, de facto parent, in loco parentis, and
due process under an equitable parent theory. T.P.S., 2012 IL App (5th) 120176, ¶¶ 16-17,
64-65. The trial court granted the respondent’s motion to dismiss for lack of standing. T.P.S.,
2012 IL App (5th) 120176, ¶ 18.
¶ 41 On appeal, the court applied M.J.’s analysis for cases involving artificial insemination.
T.P.S., 2012 IL App (5th) 120176, ¶¶ 32-41. The court reiterated “Illinois’s public policy
recognizing ‘the right of every child to the physical, mental, emotional, and monetary support
of his or her parents.’ ” (Emphasis in original.) T.P.S., 2012 IL App (5th) 120176, ¶ 34
(quoting M.J., 203 Ill. 2d at 539). Based on that “strong public policy language,” the court
reasoned that the children had a right not only to the petitioner’s monetary support, as in
M.J., but also to her physical, mental, and emotional support. T.P.S., 2012 IL App (5th)
120176, ¶ 36. The court explained that the basis of recognizing parental rights was not
biological or statutory but rather the fact that the petitioner actively had planned and arranged
“for the procreation of these children and cared for them as a parent pursuant to an express
agreement with the biological mother.” T.P.S., 2012 IL App (5th) 120176, ¶ 62. Based on
this reasoning, the court reversed the dismissal of the contract and promissory-estoppel
claims. T.P.S., 2012 IL App (5th) 120176, ¶ 67. Notably, however, the court affirmed the
dismissal of the claims based on the common-law theories of equitable parent, de facto
parent, and in loco parentis, and on due process, because Illinois law does not recognize
those theories as bases for custody or visitation claims. T.P.S., 2012 IL App (5th) 120176,
¶¶ 64-65.
¶ 42 Neither M.J. nor T.P.S. compels recognizing Jim as a parent in the present case, because
neither recognized the theory of equitable parent as a basis to assert standing to bring
custody, visitation, and support claims. As noted, T.P.S. expressly stated that Illinois does not
recognize the equitable parent doctrine. T.P.S., 2012 IL App (5th) 120176, ¶ 65.
¶ 43 Additionally, M.J. and T.P.S. are inapposite, because the courts in both of those cases
expressly limited their holdings to cases involving children born by artificial insemination
(M.J., 203 Ill. 2d at 541-42; T.P.S., 2012 IL App (5th) 120176, ¶ 23). As the court in M.J.
recognized, the Illinois Parentage Act is unique in explicitly conferring the status of legal
parent on a husband consenting to the artificial insemination of his wife. M.J., 203 Ill. 2d at
535 (noting that “section 3(a) provides for the establishment of a parent-child relationship”).
Further, section 3(b) of the Illinois Parentage Act provides that the semen donor for the
artificial insemination procedure “shall be treated in law as if he were not the natural father
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of a child thereby conceived.” 750 ILCS 40/3(b) (West 2012); see M.J., 203 Ill. 2d at 534
(observing that section 3(b) eliminated the fear that the donor might claim paternity as well
as protected the donor from child support claims). Thus, the Illinois Parentage Act operates
both to create a legal parent-child relationship between the child and the consenting husband
of the artificially inseminated wife (despite the absence of biological ties) and simultaneously
to eradicate the parental status of the sperm donor (despite the presence of a biological
relationship). The courts in M.J. and T.P.S. did not reach the question of whether the Illinois
Parentage Act applied to unmarried persons. M.J., 203 Ill. 2d at 537; T.P.S., 2012 IL App
(5th) 120176, ¶ 27 n.1. Nonetheless, based on the parties’ deliberate conduct intended to
cause children to be born by artificial insemination, the courts in M.J. and T.P.S. essentially
imposed a parental status on persons not otherwise legally recognized as parents. M.J., 203
Ill. 2d at 541 (reasoning that a person who engages in a deliberate course of conduct with the
precise goal of causing the birth of a child should receive the same treatment in the eyes of
the law as an unmarried man who biologically causes conception through sexual relations
without the premeditated intent of causing a birth); T.P.S., 2012 IL App (5th) 120176, ¶¶ 37,
39, 41, 59, 60, 62 (describing as a parent the biological mother’s partner who actively
planned and participated in the decision and process of artificial insemination to cause a child
to be born). In light of the Illinois Parentage Act’s exclusion of the sperm donor as father, the
public policy that all children be supported by their parents could be effectuated in M.J. and
T.P.S. only by the recognition of parental responsibility (M.J.) and of parental rights (T.P.S.)
in persons not elsewhere recognized as legal parents.6
¶ 44 In the present case, Scarlett was not born by artificial insemination. Whatever the extent
of Jim’s participation in Maria’s adoption of Scarlett, he did nothing to cause her to be born.
Key to the courts’ recognition of parental status in both M.J. and T.P.S. was the presence of a
deliberate course of conduct intended to bring about the birth of a child by artificial
insemination. M.J., 203 Ill. 2d at 541 (reasoning that “if an unmarried man who biologically
causes conception through sexual relations without the premeditated intent of birth is legally
obligated to support a child, then the equivalent resulting birth of a child caused by the
deliberate conduct of artificial insemination should receive the same treatment in the eyes of
the law”); T.P.S., 2012 IL App (5th) 120176, ¶ 62 (explaining that the petitioner had been
“intimately involved in the planning and arrangement for the procreation of these children”).
Accordingly, the limited holdings in M.J. and T.P.S., allowing support, visitation, and
custody claims in artificial insemination cases to proceed under common-law contract and
promissory-estoppel theories, are not applicable here.
¶ 45 Moreover, in none of his briefs has Jim cited any Illinois case on point that would allow
him to pursue visitation and custody claims under the equitable parent doctrine. Jim’s
reliance on Koelle v. Zwiren, 284 Ill. App. 3d 778 (1996), is not persuasive. In Koelle, after
the biological mother deceived the plaintiff by telling him that he was the child’s biological
father, the plaintiff acted as the child’s father for eight years. Koelle, 284 Ill. App. 3d at
781-82. When the plaintiff discovered that he was not the child’s father, he filed suit seeking,
6
Given that the courts in both M.J. and T.P.S. recognized the nonbiological “parents” as parents, the
superior rights doctrine, protecting parents’ fundamental liberty interests, was not implicated. See In re
Custody of Ayala, 344 Ill. App. 3d 574, 585 (2003) (“Neither parent’s right to custody, control and care
of their child is superior to that of the other parent.”).
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inter alia, visitation based on equitable principles. Koelle, 284 Ill. App. 3d at 782. The
appellate court relied on In re Custody of Townsend, 86 Ill. 2d 502 (1981), to conclude that
“awarding custody or visitation rights to a nonparent over the objection of a natural parent is
permissible if it would be in the best interests of the child.” Koelle, 284 Ill. App. 3d at 784.
We have serious doubts that the reasoning employed by the court in Koelle, decided before
Troxel, would survive scrutiny under a Troxel analysis, because it placed a nonparent on
equal footing with a parent and completely bypassed the superior rights doctrine. And, in
fact, in R.L.S., our supreme court abrogated Townsend and a line of pre-Troxel cases that had
held that a fit parent’s custody rights are subservient to the child’s best interests. R.L.S., 218
Ill. 2d at 444, 447-48. Moreover, the particularly egregious facts of Koelle, where the mother
lied to the plaintiff about his paternity for eight years, are not present in the instant case.
¶ 46 Jim’s reliance on In re Ashley K., 212 Ill. App. 3d 849 (1991), is also unavailing. In
Ashley K., the child was taken into protective custody after she was born addicted to heroin.
Ashley K., 212 Ill. App. 3d at 853. The child then became “caught in the quagmire of the
bureaucratic maze,” never receiving the dispositional hearing to which she was entitled
within 18 months of her placement. Ashley K., 212 Ill. App. 3d at 873. After the child had
lived for five years in a stable home with her foster parents, the biological parents filed a
petition to regain custody, which the trial court granted. Ashley K., 212 Ill. App. 3d at
873-74. The appellate court reversed and remanded for a new hearing on the parents’ custody
petition, based on the child’s best interests. Ashley K., 212 Ill. App. 3d at 890-91. Although
the court referred to the foster parents as the de facto parents (Ashley K., 212 Ill. App. 3d at
874), the court was not called upon to address the issue of a nonparent’s standing. Not only
were the legal issues different from those in the present case, but also the egregious facts of
Ashley K. are clearly distinguishable. Here, since her adoption Scarlett has never lived apart
from Maria, and Jim has never challenged Maria’s fitness and does not dispute the trial
court’s finding that he and Maria were “both hands on good attentive parents.”
¶ 47 In his brief on reconsideration, Jim further cites the recent case of In re Parentage of
J.W., 2013 IL 114817, which, though recognizing that today’s families often do not fit the
traditional paradigm (J.W., 2013 IL 114817, ¶ 48), had nothing whatsoever to do with
common-law claims for visitation or custody, or the concept of an equitable parent. Rather,
the court in J.W. engaged in statutory interpretation of the Parentage Act of 1984 to construe
its interrelationship with the Dissolution Act. J.W., 2013 IL 114817, ¶¶ 36, 50 (holding that
the biological father, who established his paternity under the Parentage Act of 1984 more
than six years after the child’s birth, was not entitled to the presumption that visitation was in
the child’s best interests (under section 607 of the Dissolution Act) but was required to prove
that visitation was in the child’s best interests (under section 602 of the Dissolution Act)).
¶ 48 The remaining cases that Jim cites in support of his argument that he has standing as an
equitable parent are also inapposite. See, e.g., Hawkins v. Hawkins, 102 Ill. App. 3d 1037,
1039 (1981) (recognizing that a common-law tradition of allowing grandparent visitation was
not supplanted by an early version of the Dissolution Act that did not provide for any
nonparent visitation); Cebrzynski v. Cebrzynski, 63 Ill. App. 3d 66, 67, 73 (1978) (examining
the Probate Act and affirming the trial court’s grant of physical custody to stepmother with
visitation to the biological mother where the stepmother had had actual physical custody of
the children for over three years); Look v. Look, 21 Ill. App. 3d 454, 456-57, 459 (1974)
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(affirming the trial court’s order granting custody to the grandparents instead of the
biological father where the child had lived with the grandparents for five years).
¶ 49 Both Jim, in his original briefs, and the Illinois ACLU, in its amicus brief, cited a litany
of out-of-state cases in support of the proposition that this court should recognize Jim’s
standing as an equitable parent. Cases from our sister states are not binding on this court. See
Grafner v. Department of Employment Security, 393 Ill. App. 3d 791, 801 (2009). Neither do
we find them persuasive, because they are not representative of Illinois law, which, as we
have discussed, has never recognized the equitable parent doctrine as a basis to bring a
custody or visitation claim. Most of the cases cited are based on either a specific state statute
granting standing to a nonparent petitioner or on well-established common law within that
state. See, e.g., Mullins v. Picklesimer, 317 S.W.3d 569 (Ky. 2010) (holding that the
biological mother’s former same-sex partner had standing to seek custody under a statute
granting standing to a nonparent who has physical custody and was acting as a parent, even if
the nonparent did so in a shared custody, coparenting situation); C.E.W. v. D.E.W., 2004 ME
43, 845 A.2d 1146 (affirming the trial court’s award of parental rights to the biological
mother’s former same-sex partner, where the mother conceded that the partner was the
child’s de facto parent under Maine’s common law, and rejecting the mother’s argument that
under relevant Maine statutory provisions a de facto parent’s rights are limited to visitation
only); Latham v. Schwerdtfeger, 802 N.W.2d 66 (Neb. 2011) (despite lack of statutory
standing, biological mother’s former same-sex partner had standing to seek custody and
visitation under the doctrine of in loco parentis, which was well established in Nebraska’s
common law); Clifford K. v. Paul S., 619 S.E.2d 138 (W. Va. 2005) (following the biological
mother’s death, her same-sex partner was awarded custody as the psychological parent, over
the maternal grandfather, under the “exceptional cases” provision of a West Virginia statute).
But cf. In re Custody of H.S.H.-K., 533 N.W.2d 419 (Wis. 1995) (holding that biological
mother’s former same-sex partner lacked standing to seek custody, because she had not
demonstrated the mother’s unfitness or compelling circumstances requiring a custody
change, but holding that, based on the courts’ long-recognized equitable power, nonparent
could establish standing to seek visitation if she demonstrated a parent-like relationship with
the child and a significant triggering event justifying state intervention).
¶ 50 In his original briefs, in addition to his equitable parent argument, Jim also maintained
that the common-law doctrine of parens patriae allows him to pursue custody and visitation.
Jim argued that under this doctrine courts have inherent authority to exercise jurisdiction
over children, independent of statute. The doctrine of parens patriae recognizes the “general
power and obligation of the government as a whole to protect minors and the infirm.”
(Internal quotation marks omitted.) In re D.S., 198 Ill. 2d 309, 328 (2001). The power was
expressly incorporated into section 601(a) of the Dissolution Act (750 ILCS 5/601(a) (West
2012)). Milenkovic v. Milenkovic, 93 Ill. App. 3d 204, 213 (1981). However, “[t]his common
law concept has traditionally empowered the courts, in extreme circumstances, to guard the
welfare of neglected minors, incompetents, and others who suffer certain legal disabilities.”
Milenkovic, 93 Ill. App. 3d at 213. Given that Jim has not even alleged that Scarlett is subject
to neglect or abuse, he has provided no basis upon which the trial court could exercise its
parens patriae power. Milenkovic, 93 Ill. App. 3d at 213 n.8 (noting that the power is
“considered extraordinary and is not intended as the basis of jurisdiction for general custody
disputes between parents and others”). The cases cited by Jim do not convince us otherwise.
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See, e.g., People ex rel. Lehman v. Lehman, 34 Ill. 2d 286, 287 (1966) (addressing proper
venue as between two different counties); People ex rel. Vallera v. Rivera, 39 Ill. App. 3d
775, 777 (1976) (reversing the trial court’s denial of the putative father’s visitation petition
(pending the mother’s paternity suit where the father admitted paternity) and remanding for a
hearing on best interests of the child).
¶ 51 4. Further Analysis Upon Remand:
Standing Under Equitable Adoption Doctrine
¶ 52 We now turn to DeHart, in which our supreme court considered, inter alia, whether to
recognize the theory of equitable adoption as a basis upon which the plaintiff could contest a
will. In DeHart, the plaintiff argued that, because the decedent had equitably adopted him,
the decedent’s estate was estopped from denying the plaintiff’s status as an heir at law.
DeHart, 2013 IL 114137, ¶ 12.
¶ 53 For over 50 years, from the time the plaintiff was about two years old, the decedent had
held out the plaintiff as his biological son to the plaintiff and to the world at large. The
decedent married the plaintiff’s biological mother after she had become pregnant out of
wedlock. DeHart, 2013 IL 114137, ¶ 5. The decedent gave the plaintiff a birth certificate
indicating that the decedent was the plaintiff’s father. Both the decedent and the plaintiff
used the birth certificate to conduct their affairs, to enroll the plaintiff in school, and to prove
that the decedent was the plaintiff’s natural father. DeHart, 2013 IL 114137, ¶ 3. When the
plaintiff was about 56 years old, he acquired a certified copy of his birth certificate, which
revealed that the decedent was not his biological father. DeHart, 2013 IL 114137, ¶ 4. When
the plaintiff asked the decedent for an explanation,7 the decedent told him that he had
married the plaintiff’s mother and adopted the plaintiff when he was two years old. The
decedent explained that he had agreed with the plaintiff’s mother to keep the adoption secret
because the plaintiff had been born out of wedlock. The decedent told the plaintiff that he
had hired a lawyer so that the adoption was legal. DeHart, 2013 IL 114137, ¶ 5. (Despite the
decedent’s assurances to the plaintiff, the record contained no legal documentation of an
adoption. DeHart, 2013 IL 114137, ¶ 6.) Even after the certified birth certificate came to
light and the plaintiff’s mother died, the decedent continued to represent the plaintiff as his
son and executed a will that provided for the plaintiff, as his son, as well as for the plaintiff’s
children. DeHart, 2013 IL 114137, ¶ 7.
¶ 54 When the decedent was 83 years old, he met and married the defendant, who was almost
30 years his junior. DeHart, 2013 IL 114137, ¶ 8. About one year later, the decedent signed a
will, in which he stated that he had no children and bequeathed nothing to the plaintiff.
DeHart, 2013 IL 114137, ¶ 9. When the decedent died a few months later, the defendant filed
the latest will in the trial court. The plaintiff contested the will in a six-count complaint,
alleging a lack of testamentary capacity, undue influence, fraudulent inducement, tortious
interference with economic expectancy, contract for adoption, and equitable adoption.
DeHart, 2013 IL 114137, ¶ 12. The trial court dismissed the plaintiff’s entire complaint for
failure to state a cause of action. DeHart, 2013 IL 114137, ¶ 13. The appellate court reversed,
and the supreme court affirmed the appellate court. DeHart, 2013 IL 114137, ¶¶ 14, 77.
7
At the time, the plaintiff’s mother was suffering from early onset dementia. DeHart, 2013 IL
114137, ¶ 6.
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¶ 55 Relevant to our discussion, the supreme court affirmed the appellate court’s conclusion
that the plaintiff had stated a claim under a theory of equitable adoption, but it rejected the
appellate court’s reasoning requiring proof of a contract to adopt. DeHart, 2013 IL 114137,
¶ 66. The supreme court pointed out that the concept of equitable adoption had been neither
expressly recognized nor expressly rejected in Illinois. DeHart, 2013 IL 114137, ¶ 56. The
court observed that many states equate the concept of equitable adoption with a
contract-to-adopt theory. DeHart, 2013 IL 114137, ¶ 52. However, the court noted that a few
states had refused to apply a steadfast requirement of a contract to adopt as a prerequisite to
finding an equitable adoption. DeHart, 2013 IL 114137, ¶ 53. The court found that “the
underpinnings to pave the way” for recognition of the concept of equitable adoption in
Illinois existed in its contract-to-adopt decisions in Monahan v. Monahan, 14 Ill. 2d 449
(1958) (reversing the trial court’s dismissal of the plaintiff’s claim against the heirs of the
decedent’s estate because there was clear and convincing evidence of a contract to adopt),
and Weiss v. Beck, 1 Ill. 2d 420 (1953) (affirming the trial court’s dismissal of the plaintiff’s
claim against the heirs of the decedent’s estate, because the evidence of an oral contract to
adopt was not clear and convincing). DeHart, 2013 IL 114137, ¶ 56. The court discussed at
length Roberts v. Roberts, 223 F. 775 (8th Cir. 1915) (allowing a claim against the
decedent’s estate based on an oral agreement to adopt), which the courts in both Monahan
and Weiss cited with approval for the proposition that a contract to adopt can be shown by
circumstantial evidence. DeHart, 2013 IL 114137, ¶¶ 57-58. The court observed that the
decision in Roberts rested “more on equitable principles of fairness and intent rather than the
ordinary rules of contract law.” DeHart, 2013 IL 114137, ¶ 58. The court concluded that
“Roberts supports the position that in Illinois an equitable adoption theory should be
recognized under the right circumstances even in the absence of a statutory adoption or a
contract for adoption.” DeHart, 2013 IL 114137, ¶ 58.
¶ 56 The supreme court then addressed the question of what the right circumstances would
be–meaning, absent a statutory adoption or a contract to adopt, what did the plaintiff need to
prove to establish an equitable adoption. The court adopted the holding of the California
Supreme Court in In re Estate of Ford, 82 P.3d 747 (Cal. 2004), because it “struck the proper
balance” (DeHart, 2013 IL 114137, ¶ 59)–in not requiring proof of a contract to adopt, but
also in not finding an equitable adoption based merely on a close familial relationship
(DeHart, 2013 IL 114137, ¶ 54). The court held that an equitable adoption would be
recognized in Illinois “only in those cases where there is sufficient, objective evidence of an
intent to adopt (or fraudulently or mistakenly holding out as a natural child on a continual
basis), supported by a close enduring familial relationship.” DeHart, 2013 IL 114137, ¶ 62.
¶ 57 The court then turned to the quantum of evidence necessary to prove an equitable
adoption claim. DeHart, 2013 IL 114137, ¶ 63. The court noted that, in the context of
contract-to-adopt claims, clear and convincing evidence was required. DeHart, 2013 IL
114137, ¶ 63. The court reasoned that the same standard of proof should apply to equitable
adoption claims. “When the lips of a deceased person who is alleged to have intended an
adoption are sealed by death, proof of the facts necessary to invoke principles of equity
should be clear, unequivocal and convincing.” DeHart, 2013 IL 114137, ¶ 64. Additionally,
citing Ford, the court expressed concern that “too lax a standard *** could create a danger
that a person could not take in a child in need without having a de facto adoption perpetrated
upon him after his death.” DeHart, 2013 IL 114137, ¶ 64. Thus, the court held that clear and
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convincing evidence was necessary to support an equitable adoption claim. The court
elaborated that the decedent’s intent “must not be just as readily harmonizable with the mere
intention to provide a good home, but must instead indicate a clear intent to adopt or to
continuously represent to the plaintiff and the world at large that the plaintiff was the
decedent’s natural child.” DeHart, 2013 IL 114137, ¶ 65.
¶ 58 In reaching its holding, the court rejected the defendant’s argument that allowing an
equitable adoption claim to proceed without proof of a contract to adopt would result in
unintended consequences where a person who was kind to a child but took no affirmative
action to become a parent might nonetheless “be deemed to confer legal rights to that person
as an heir.” DeHart, 2013 IL 114137, ¶ 61. The court observed, “The narrow nature of our
holding forecloses claims against the estate of any foster parent or stepparent who merely
treats a foster or stepchild lovingly and on an equal basis with his or her natural or legally
adopted children.” (Emphasis in original.) DeHart, 2013 IL 114137, ¶ 62.
¶ 59 Before we turn to our supreme court’s directive to reconsider our decision in light of
DeHart, we pause to observe that our supreme court’s recognition of the equitable adoption
doctrine in DeHart is consistent with most other jurisdictions applying the doctrine in the
estate context.8 The doctrine is applied in that context “to give effect to the intent of the
decedent to adopt and provide for the child.” 2 Am. Jur. 2d Adoption § 63 (2013).
Essentially, the equitable adoption doctrine allows the plaintiff to assert a property right. See
Ford, 82 P.3d at 753 (describing the intent to be ascertained as that regarding “the decedent’s
likely intent regarding distribution of property”). In the estate context, the doctrine is “not
intended or applied to create the legal relationship of parent and child, nor is it meant to
create a legal adoption.” 2 Am Jur. 2d Adoption § 63 (2013); Elizabeth A. Gaudio, Family
Law: Limiting the Scope of Equitable Adoption, 54 Md. L. Rev. 822, 827 (1995) (stating that
equitable adoption does not change the child’s status to that of being legally adopted); see
generally Tracy Bateman Farrell, 122 A.L.R. 5th 205 (2004) (discussing various views on the
implications of equitable adoption such as whether an equitably adopted child may be treated
as legally adopted for inheritance tax purposes, life insurance benefits, wrongful death
actions, social security benefits, etc.). Rather, “[t]he child shares in the estate of the deceased
foster parent as though his own child but not as such.” (Emphasis in original.) Ford, 82 P.3d
at 751 (citing In re Estate of Radovich, 308 P.2d 14, 24 (Cal. 1957) (Schauer, J., dissenting,
joined by McComb, J.), and noting that “Justice Schauer’s explanation of the doctrine has
been widely cited and relied upon ***.”). “To correct the injustice that would result were the
intestacy [or probate] laws woodenly applied, most jurisdictions grant equitable relief, when
appropriate, to the extent of permitting [the child] to take the child’s share he would have
inherited [or recognizing his standing to challenge the decedent’s will] had the foster parent
legally adopted him.” Jan Ellen Rein, Relatives by Blood, Adoption, and Association: Who
Should Get What and Why (The Impact of Adoptions, Adult Adoptions, and Equitable
Adoptions on Intestate Succession and Class Gifts), 37 Vand. L. Rev. 711, 767 (1984).
¶ 60 In contrast to the limited implications of the equitable adoption doctrine in the estate
context, the doctrine would have much broader consequences in the custody context. In the
estate context, no ongoing relationship is created; instead, the court examines the relationship
8
We refer below to the cases relied upon by Jim in which courts in other jurisdictions applied the
equitable adoption doctrine in the context of child custody, visitation, and support.
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between the decedent and the child–after the fact–as evidence of the decedent’s intent to
adopt. In the custody context, however, if an equitable adoption were recognized, an ongoing
legal relationship between the child and the third party would result–with all of the potential,
and perhaps unintended, legal consequences flowing therefrom.
¶ 61 With this framework in mind, we consider whether DeHart, with its unique facts and
narrow holding, warrants a different result in the present case. In his petition, Jim’s claims
for custody and visitation (count I) and for child support (count II) were based on an
equitable parent theory. The trial court observed that it was “bound to follow the law as it
exists.” As we discussed above, given that Illinois has never recognized the equitable parent
doctrine (T.P.S., 2012 IL App (5th) 120176, ¶ 64), the trial court properly found that Jim
lacked standing under that theory. Nor did DeHart recognize or address the equitable parent
theory.
¶ 62 Following our supreme court’s supervisory order, in his briefs on reconsideration, Jim
asks us to apply the equitable adoption doctrine announced in DeHart. He urges that giving
effect to the equitable principles of fairness and intent is more important in the context of
child custody than in the estate context, because “a child’s emotional and financial
well-being are at stake.” Jim argues that the trial court’s findings were sufficient for us to
conclude that, under DeHart, he equitably adopted Scarlett. In the alternative, he asks that we
“remand for further proceedings so that the circuit court can make factual findings as to
whether Jim equitably adopted Scarlett in light of [DeHart].”
¶ 63 After the parties filed their briefs on reconsideration, the First District Appellate Court
completed its reconsideration of its decision in Mancine in light of DeHart. In re Marriage of
Mancine, 2014 IL App (1st) 111138-B. In its original opinion, the First District affirmed the
trial court’s section 2-619 dismissal of the husband’s custody claim, based, inter alia, on an
equitable adoption theory. The court held that the husband lacked standing because he was
not the child’s biological or legally adoptive parent. Mancine, 2012 IL App (1st)
111138-B, ¶ 1. On reconsideration, the court rejected application of the equitable adoption
doctrine to the custody context. Mancine, 2014 IL App (1st) 111138-B, ¶ 2. The court held
that DeHart did not warrant a different result, “because equitable adoption is a concept in
probate to determine inheritance and should have no application in the context of statutory
proceedings of adoption, divorce proceedings, or parentage, and also because the facts of this
case are vastly different from DeHart and do not meet the adopted standards in DeHart to
establish an equitable adoption.” Mancine, 2014 IL App (1st) 111138-B, ¶ 2.
¶ 64 As should be clear from our foregoing discussion regarding the implications of applying
the equitable adoption doctrine in the custody context, we appreciate the concerns raised by
the court in Mancine. See Mancine, 2014 IL App (1st) 111138-B, ¶¶ 22-24. However, we are
not prepared to hold, as a matter of law, that the equitable adoption doctrine could never be
applied to a custody case. Thus, we decline to follow Mancine’s holding, because we believe
that DeHart might present a potentially viable theory of standing for Jim.
¶ 65 Nonetheless, any determination regarding the applicability of the equitable adoption
doctrine to the present case at this time would be premature given the current state of the
record, which is not developed with respect to this theory. We acknowledge that the court in
Mancine distinguished the facts of its case from those in DeHart and held that the facts
before it did not satisfy the two elements of equitable adoption as set out in DeHart. Suffice
it to say that, unlike in the present case, the custody claim in Mancine arose in the context of
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divorce proceedings where the husband, the child’s stepfather, argued that he had equitably
adopted the child. In light of the subtleties presented by child custody cases and the
sui generis nature of cases involving parental rights generally (see In re A.D.R., 186 Ill. App.
3d 386, 390 (1989)), we find little guidance for this case in Mancine’s comparison of its facts
with the facts in DeHart.
¶ 66 Here, the trial court heard 17 days of testimony and made extensive factual findings
within the context of the pleadings before it. The court found that Jim and Maria planned and
participated in the Slovakian adoption together and that Jim paid for it all and supported
Maria during the process. The court found that Jim never adopted Scarlett but that the parties
had “discussed” it. The court stated, “The reasons for these inactions are basically unknown
except for the ‘falling out’ Jim and Maria had some time later.” Jim points out the following
passage from our previous opinion:
“Jim testified that it was the parties’ intent that both of them would pursue adoption
of Scarlett in this country. He said that he had initiated discussions with Maria about
adoption every three to six months through 2006. Jim testified that Maria’s response
was always positive but that she did not act upon his requests. He testified that, when
he told Maria that he had found an attorney to handle the adoption, Maria responded
that she was busy and that she wanted a Slovakian attorney.” Scarlett Z.-D., 2012 IL
App (2d) 120266, ¶ 41, appeal denied and judgment vacated by In re Parentage of
Scarlett Z.-D., No. 115000 (Ill. May 29, 2013).
The trial court also found that “for a long time during and after the adoption of [Scarlett], Jim
and Maria lived together with the child as an intact family unit as if they were bound
legally.” The court found that, for four years or more, Scarlett lived with Jim, called him
“daddy,” and looked to him as a “father figure.”
¶ 67 Jim contends that these findings establish that the requirements of an equitable adoption
as announced in DeHart have been met. The court in DeHart explained the limited nature of
its holding, stating that “only in those cases where there is sufficient, objective evidence of
an intent to adopt (or fraudulently or mistakenly holding out as a natural child on a continual
basis), supported by a close enduring familial relationship, will an equitable adoption be
recognized.” DeHart, 2013 IL 114137, ¶ 62. The court in DeHart announced a narrow
holding based on its unique facts–the decedent and the biological mother were married and,
for several decades, effectuated their shared intent to deceive the plaintiff and the world at
large that the plaintiff was their biological son (and later that the decedent had adopted the
plaintiff). Thus, in the present case, we decline to simply extrapolate the trial court’s findings
into a determination of equitable adoption. A trial court does not make factual findings in a
vacuum. A trial court makes its factual findings in the context of the pleadings, the evidence,
and the parties’ arguments. Prior to DeHart, and absent any argument from the parties, the
trial court did not have the opportunity to evaluate the evidence with equitable adoption in
mind. In order to give the trial court that opportunity, we vacate the trial court’s order
denying counts I and II and remand the case to the trial court with the following directions.
¶ 68 On remand, the court shall make factual findings with reference to the equitable adoption
doctrine recognized in DeHart. In its discretion, the court may proceed solely on the
evidence and arguments previously introduced, or hear additional arguments, or allow both
new evidence and arguments. The court should consider, inter alia, whether there is
“objective evidence” (DeHart, 2013 IL 114137, ¶ 62) that establishes the requisite “equitable
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justification for finding an equitable adoption” (DeHart, 2013 IL 114137, ¶ 60) that existed
in DeHart. As explained by the court in Ford, on which our supreme court relied heavily in
DeHart, “[a]s the claim’s strength lies in inherent justice [citation], the need in justice for this
extraordinary equitable intervention [citation] should appear clearly and unequivocally from
the facts.” (Internal quotation marks omitted.) Ford, 82 P.3d at 754-55. Furthermore, the trial
court should be cognizant of the caution from the court in Ford that “a rule looking to the
parties’ overall relationship in order to do equity in a given case, rather than to particular
expressions of intent to adopt, would necessarily be a vague and subjective one,
inconsistently applied, in an area of law where ‘consistent, bright-line rules’ [citation] are
greatly needed.” Ford, 82 P.3d at 753.
¶ 69 We note that, in support of his position, Jim relies on several out-of-state cases (Johnson
v. Johnson, 2000 ND 170, 617 N.W.2d 97, Geramifar v. Geramifar, 688 A.2d 475 (Md. Ct.
Spec. App. 1997), Frye v. Frye, 738 P.2d 505 (Nev. 1987) (per curiam), and Atkinson v.
Atkinson, 408 N.W.2d 516 (Mich. Ct. App. 1987)), in which the courts applied the equitable
adoption doctrine outside of the estate context. Again, cases from our sister states are not
binding on this court. See Grafner, 393 Ill. App. 3d at 801. In any event, we briefly note that
these cases are distinguishable. In Johnson, Geramifar, and Frye, unlike in the present case,
child support claims were brought in divorce proceedings between spouses who had entered
contracts to adopt (Johnson, 2000 ND 170, ¶ 22, 617 N.W.2d 97, 104-05; Geramifar, 688
A.2d at 478; Frye, 738 P.2d at 505). In Atkinson, the court recognized a nonparent’s claims
for parental rights against the biological mother, but the parties were married, and indeed the
mother allowed the husband to think that he was the child’s biological father until divorce
proceedings were commenced, when the child was almost four years old. Atkinson, 408
N.W.2d at 517.
¶ 70 5. Jim’s Constitutional Arguments
¶ 71 Jim further contends that the trial court’s denial of his petition violates both his and
Scarlett’s federal and state constitutional rights. Specifically, Jim urges that his and Scarlett’s
substantive due process rights to “familial association and integrity” were violated and that
Scarlett’s right to equal protection was violated because she was penalized “because of her
birth status or her parents’ marital status, which are beyond her control.”
¶ 72 To the extent that Jim raises constitutional claims on Scarlett’s behalf, we must reject
them. The caption on Jim’s petition states, “Scarlett [Z.-D.], A Minor Child, by James R.[D.],
individually, and as next friend on behalf of minor child Scarlett [Z.-D.], Petitioners.” We
note that a minor may not bring a suit in her own name. Severs v. Country Mutual Insurance
Co., 89 Ill. 2d 515, 520 (1982); Klak v. Skellion, 317 Ill. App. 3d 1092, 1094-95 (2000).
Although Jim filed a motion to be appointed next friend, the trial court denied it based on
Jim’s status as a party, which created a conflict of interest. Furthermore, “a party has
standing to bring a constitutional challenge only if the party is able to show himself to be
within the class aggrieved by the alleged unconstitutionality.” In re Marriage of Nienhouse,
355 Ill. App. 3d 146, 153 (2004). Thus, Jim may not assert Scarlett’s constitutional rights.
¶ 73 Regarding Jim’s argument about his due process rights as a parent, we hold that the
argument is premature; prior to remand, any review by this court of Jim’s rights as a parent
would be purely advisory.
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¶ 74 B. Counts III Through VI: Contract Claims
¶ 75 Jim finally urges that the dismissal of counts III through VI (breach of oral agreement,
promissory estoppel, breach of implied contract in fact, and breach of implied contract in
law, respectively) was erroneous, because the claims were properly pleaded and not
contingent on a statute or a finding of parentage. Our review of a trial court’s section 2-615
dismissal is de novo. Rajterowski v. City of Sycamore, 405 Ill. App. 3d 1086, 1092 (2010).
¶ 76 We hold that the trial court’s dismissal of these counts was proper. Notwithstanding Jim’s
assertion to the contrary, we note that, based on our discussion above, M.J. and T.P.S. have
no bearing on these claims, as those courts’ holdings were expressly limited to cases
involving children born by artificial insemination. See T.P.S., 2012 IL App (5th) 120176,
¶¶ 53-54 (distinguishing our prior decision in this case on the basis that it did not involve
artificial insemination). Although counts III through VI all sounded in contract, the relief
sought was custody, visitation, and child support determinations. See Wabash County v.
Illinois Municipal Retirement Fund, 408 Ill. App. 3d 924, 932 (2011) (stating that the
substance of a pleading is controlling, not its title). Thus, to recognize Jim’s contract claims
as valid would allow him to circumvent the statutory standing requirements. Absent a legal
or equitable basis to do so, such circumvention would be improper. Furthermore, if it is
ultimately determined that Jim does have standing, the claims raised in counts III through VI
will be effectively moot. Accordingly, we affirm the trial court’s dismissal of these claims.
See In re Marriage of Murphy, 359 Ill. App. 3d 289, 300 (2005) (we can affirm dismissal on
any basis supported by record, regardless of trial court’s reasoning).
¶ 77 III. CONCLUSION
¶ 78 In sum, the trial court correctly determined that Maria did not waive the issue of standing,
and its conclusion that equitable estoppel did not apply was not against the manifest weight
of the evidence. Regarding standing, as Jim concedes, he is not Scarlett’s biological or
legally adoptive parent, and Scarlett has always been in Maria’s physical custody. Therefore,
under the Dissolution Act and the Parentage Act of 1984, Jim had no standing to bring his
claims for custody, visitation, and support. Furthermore, because Illinois does not recognize
the equitable parent doctrine, Jim is precluded from asserting standing on that theory.
However, because the equitable adoption doctrine announced in DeHart might present a
potentially viable theory upon which Jim could assert standing, we remand for further
proceedings. On remand, the trial court should make additional factual findings, pursuant to
the equitable adoption doctrine, to determine whether there is a “need in justice for this
extraordinary equitable intervention.” (Internal quotation marks omitted.) Ford, 82 P.3d at
754-55. In its discretion, the court may, but need not, hear additional evidence or argument,
or both, on the issue of equitable adoption. If the court finds that Jim does have standing
under the equitable adoption theory, the court should proceed to consider Scarlett’s best
interests. If the court finds that Jim does not have standing, it should deny counts I and II
again. Finally, we affirm the court’s section 2-615 dismissal of counts III through VI.
¶ 79 For all of the foregoing reasons, the trial court’s dismissal of counts III through VI is
affirmed. We vacate the trial court’s February 29, 2012, order denying counts I and II. We
remand the cause to the circuit court of Du Page County for further proceedings on counts I
and II.
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¶ 80 Affirmed in part and vacated in part; cause remanded with directions.
¶ 81 JUSTICE McLAREN, specially concurring in part and dissenting in part.
¶ 82 I specially concur in the portion of the opinion that remands the case to the trial court for
further findings and reconsideration. I dissent from the limited scope of the proceedings that
the majority orders on remand, as well as from the limitations that the majority imposes upon
the trial court’s ability to render findings of fact and conclusions of law based upon the
opinion in DeHart.
¶ 83 I would vacate the trial court’s entire judgment and remand the cause for further
proceedings on all counts. I would direct the trial court to reconsider its rulings on the issue
of standing as it applies to all counts. DeHart considered two aspects of adoption law. One
aspect related to the contractual concept of contract to adopt; the other aspect was the
equitable concept of equitable adoption. I do not believe that the pleadings in this case relate
to a contract to adopt. On the other hand, I do believe that the equitable concept of equitable
adoption has relevance to Jim’s standing to seek the requested relief. The trial court should
determine if Jim has standing as to any count under the equitable factors of estoppel
underlying the concept of equitable adoption. If Jim is found to have standing, the trial court
should determine whether the presentation of further evidence or argument is appropriate.
Thereafter, it should rule on the merits of any count for which Jim has standing.
¶ 84 I also disagree with the majority’s apparent adoption of the “clear and convincing
evidence” burden of proof on remand. See supra ¶ 57. “When the lips of a deceased person
who is alleged to have intended an adoption are sealed by death, proof of the facts necessary
to invoke principles of equity should be clear, unequivocal and convincing.” DeHart, 2013
IL 114137, ¶ 64. Unlike the “father” in DeHart, Maria is not deceased and can testify
regarding the merits of the case. Neither the Dead-Man’s Act (735 ILCS 5/8-201 (West
2010)) nor the rationale for raising the burden of proof due to the death or incapacity of a
party is applicable here. I believe that the proper burden of proof is proof by a preponderance
of the evidence, a not insubstantial burden that is the same, incidentally, as that necessary to
find that it is in a child’s best interests that his parent’s parental rights be terminated. See
In re D.T., 212 Ill. 2d 347, 364-66 (2004).
¶ 85 I agree with the majority that the cause should be remanded. The trial court did not make
sufficient findings of fact because it dismissed the cause on the basis of a lack of standing. As
the majority indicated, Maria raised the issue of standing in her motions to dismiss brought
under both section 2-615 and section 2-619 of the Code. When the trial court dismissed
counts III through VI, it did so for reasons that of necessity were affected by DeHart,
because the “linchpin” of standing permeated Maria’s motions to dismiss. See supra ¶ 24.
The trial court commented on the evidence, but its ultimate judgment was that Jim lacked
standing. That being the case, there are no findings of fact or conclusions of law in the record
that we may consider or reconsider. See In re T.P.S., 2011 IL App (5th) 100617, ¶ 10, in
which the appellate court reversed the trial court and remanded the cause without addressing
the merits, because the trial court’s decision was based only on the respondent’s lack of
standing:
“The only issue in this appeal is whether Cathy has standing to oppose Dee’s
petitions to terminate the guardianships. We note that both parties raise additional
issues; however, because the court determined that Cathy lacked standing, it did not
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consider other issues. Thus, those issues are not before us. See People v. Nelson, 377
Ill. App. 3d 1031, 1040-41 *** (2007) (explaining that appellate courts should not
consider issues not yet addressed by the trial court because to do so would mean
rendering an advisory opinion).”
¶ 86 However, the majority is speculating as to what the trial court might have done had it
known that equitable estoppel might be available to give standing to Jim, or, more correctly,
to estop Maria from raising a lack of standing. The trial court is not prescient and could not
have known how to conduct the hearings and the trial, apply the law that now exists to the
evidence, and make findings of fact and conclusions of law. The trial court should be given a
clean slate and apply the law that presently exists or may exist in the future through
extrapolation.
¶ 87 Historically, standing was defined as “some injury in fact to a legally cognizable
interest.” Glisson v. City of Marion, 188 Ill. 2d 211, 221 (1999). “The claimed injury may be
actual or threatened, and it must be (1) distinct and palpable; (2) fairly traceable to the
defendant’s actions; and (3) substantially likely to be prevented or redressed by the grant of
the requested relief.” Id. The doctrine of standing is designed to preclude persons who have
no interest in a controversy from bringing suit. Id. The doctrine ensures that issues are raised
only by those parties with a real interest in the outcome of the controversy. Id. Additionally,
standing was an affirmative matter that could be forfeited. See Lyons v. Ryan, 324 Ill. App.
3d 1094, 1102 (2001), aff’d, 201 Ill. 2d 529 (2002) (“Nevertheless, the ruling in [Contract
Development Corp. v.] Beck, [255 Ill. App. 3d 660, 664 (1994)] (and similar cases) that
standing can be waived is correct.”).
¶ 88 I submit that, under the classic definition of standing, Jim would be allowed to seek
relief. However, in parent/child relationships, standing has been altered and codified
allegedly in order to protect a parent’s constitutional right to raise his or her child
unhampered by intrusions by the State or third parties. In Troxel, “the Court reiterated that a
parent’s right to control the upbringing of his or her children is a fundamental constitutional
right.” In re R.C., 195 Ill. 2d 291, 303 (2001). “The standing requirement of section
601(b)(2) of the [Dissolution] Act is designed to ‘ensure[ ] that the superior right of natural
parents to the care and custody of their children is safeguarded.’ [Citation.]” In re A.W.J.,
197 Ill. 2d 492, 497 (2001). The standing requirements in section 601(b)(2) of the
Dissolution Act, section 11-5(b) of the Probate Act, and section 7 of the Parentage Act of
1984 are instances of the creation of statutory standing. See, e.g., id. at 496 (“[A] nonparent’s
‘standing’ under section 601(b)(2) does not refer to whether a litigant has a justiciable
interest in a controversy [citation].”) “[W]hen used in this sense, ‘standing’ simply referred to
a threshold statutory requirement that had to be met before the court could proceed to a
decision on the merits [citation].” In re R.L.S., 218 Ill. 2d 428, 436 (2006).
¶ 89 Although a party may have a constitutional right under the law, it has historically been
subject to equitable relief. For example, a party’s constitutional claim may be considered
waived pursuant to the equitable doctrine of laches. See Levitt v. Hammonds, 256 Ill. App. 3d
62, 67 (1993). Equity may have been repressed by the passage of legislation regarding
standing, but the fundamental principle of equity ought not be disregarded when the law, as
applied, is inequitable.
¶ 90 Equitable estoppel, which may alter the common law and the strictures of the Probate Act
under appropriate circumstances, is also available to estop a parent from arguing a lack of
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statutory standing, per my reading of DeHart. Equity or chancery court in England developed
as a means to obtain relief when the King’s seven common-law writs were inapplicable,
unavailable, or worse; “[b]ills in equity were written to persuade the Chancellor to relieve the
petitioner from an alleged injustice that would result from rigorous application of the
common law” and “became the procedural vehicle for the exceptional case.” Stephen S.
Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in
Historical Perspective, 135 U. Pa. L. Rev. 909, 918 (1987). “ ‘Chancery’s flexible concern
for justice complemented admirably the formalism of a medieval system of common law
which had begun to adhere strictly, perhaps overstrictly on occasion, to prescribed forms.’ ”
Black’s Law Dictionary 225 (7th ed. 1999) (quoting A.H. Manchester, A Modern Legal
History of England and Wales, 1750-1950, at 135-36 (1980)). Ironically, the chancery court
was the court that held jurisdiction over infants: “ ‘The Court of Chancery is by law the
guardian of infants whom it makes its wards.’ ” In re Estate of Reighard, 402 Ill. 364, 377
(1949) (Crampton, J., dissenting) (quoting Lord Justice James in Beall v. Smith, (1873) L.R.
9 Ch. Ap. 85, 92).
¶ 91 Section 12 of article I of the Illinois Constitution of 1970 embodies the equitable maxim
that “equity will not suffer a wrong without a remedy.” (Internal quotation marks omitted.)
Miller v. Moran, 96 Ill. App. 3d 596, 599 (1981).9 This maxim has roots in Marbury v.
Madison, 5 U.S. (1 Cranch) 137 (1803), which used the maxim to determine that Marbury
ought to have a remedy for the wrong experienced:
“ ‘[A]ll possible injuries whatsoever [as are cognizable by the courts of the common
law], that did not fall within the exclusive cognizance of either the ecclesiastical,
military, or maritime tribunals, are for that very reason, within the cognizance of the
common law courts of justice; for it is a settled and invariable principle in the laws of
England, that every right, when withheld, must have a remedy, and every injury its
proper redress.’ ” Id. at 163 (quoting 3 William Blackstone, Commentaries *109).
As DeHart established in granting relief despite statutory and common law to the contrary,
the maxim still holds, and equity still will not suffer a wrong without a remedy.
¶ 92 A review of the cases involving parent/child and nonparent/child relationships over the
last 20 years will persuade most that the present laws in this area are not keeping pace with
the substantial changes in societal relationships. The special concurrence in Mancine
suggests that the legislature consider new legislation, which is the most appropriate
mechanism for improvement. See Mancine, 2014 IL App (1st) 111138-B, ¶¶ 81, 89 (Mason,
J., specially concurring). Meanwhile, I submit that time is of the essence, as the courts deal
with children whose development by the most nurturing relationships available is
compromised by delay and inaction.
¶ 93 I am not suggesting that the trial court needs to adopt the equitable parent doctrine or any
other denominated doctrine. I am suggesting that, if the “wrong” that Jim has suffered is
sufficiently egregious, then the court has the inherent power to estop Maria from arguing
standing, and certain facts required by statute need not be established by Jim. Further, the
9
“Every person shall find a certain remedy in the laws for all injuries and wrongs which he receives
to his person, privacy, property or reputation. He shall obtain justice by law, freely, completely, and
promptly.” Ill. Const. 1970, art. I, § 12.
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classical form of standing, wherein the defendant was required to establish lack of a claimed
injury, should apply.
¶ 94 As the majority noted, the supreme court concluded in DeHart that Roberts “ ‘supports
the position that in Illinois an equitable adoption theory should be recognized under the right
circumstances even in the absence of a statutory adoption or a contract for adoption.’
[Citation.]” Supra ¶ 55. Why should equity not be applied here? It remains to be seen if the
wrong is sufficiently egregious. And that should be the domain of the trial court.
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