In re N.C. , 2013 IL App (3d) 120438 ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
In re N.C., 2013 IL App (3d) 120438
Appellate Court In re N.C., a Minor (The People of the State of Illinois, Petitioner-
Caption Appellee, v. Nichole G., Respondent-Appellant).
District & No. Third District
Docket No. 3-12-0438
Filed July 25, 2013
Held The trial court’s adjudication that respondent’s child was neglected was
(Note: This syllabus reversed and the cause was remanded for a new hearing on the petition
constitutes no part of where the record showed that respondent’s boyfriend, who had signed a
the opinion of the court voluntary acknowledgment of paternity, was dismissed from the
but has been prepared proceedings pursuant to the grant of the State’s motion for a declaration
by the Reporter of of nonpaternity based on DNA test results showing that the boyfriend was
Decisions for the not the father and findings that the acknowledgment was signed under a
convenience of the mistake of fact, since the State had no standing to challenge the
reader.)
boyfriend’s paternity, and the boyfriend was denied his right to attend the
neglect hearing, testify, and present evidence.
Decision Under Appeal from the Circuit Court of Peoria County, No. 12-JA-43; the Hon.
Review Mark E. Gilles, Judge, presiding.
Judgment Reversed and remanded with directions.
Counsel on Louis P. Milot, of Peoria, for appellant.
Appeal
Jerry Brady, State’s Attorney, of Peoria (Terry A. Mertel and Mark A.
Austill, both of State’s Attorneys Appellate Prosecutor’s Office, of
counsel), for the People.
Panel JUSTICE McDADE delivered the judgment of the court, with opinion.
Justice Holdridge concurred in the judgment and opinion.
Justice Carter dissented, with opinion.
OPINION
¶1 The State filed a juvenile neglect petition (705 ILCS 405/2-3, 2-13 (West 2010)) seeking
to have the minor child, N.C., adjudicated neglected and made a ward of the court.
Respondent’s boyfriend, who voluntarily acknowledged he was the father of N.C., was
dismissed from the proceeding on the State’s motion after a DNA test revealed he was not
the biological father of the child. An adjudicatory hearing was held, and the trial court found
that N.C. was neglected. After a dispositional hearing, the trial court found that N.C.’s
mother was unfit, made N.C. a ward of the court, and named the Department of Children and
Family Services (DCFS) as N.C.’s guardian. N.C.’s mother (respondent) appeals, arguing
that the trial court erred in: (1) finding that N.C. was neglected; and (2) granting the State’s
motion to declare that Alfred C. was not the father of N.C. We reverse and remand.
¶2 FACTS
¶3 N.C. was born on February 17, 2012, and was taken into protective custody by DCFS a
few days thereafter. Initially, respondent’s boyfriend, Alfred C., was believed to be the father.
A day after N.C. was born, Alfred signed a voluntary acknowledgment of paternity or
parentage (VAP) as to N.C. The VAP provides that, by signing it, the signor understands that
the VAP is the same as a court order determining the legal relationship between a father and
child. The VAP also notifies the signor that he can request a genetic test as to the child’s
paternity, and that by signing the VAP he gives up his right to a genetic test.
¶4 A juvenile neglect petition was filed in the instant case as to N.C. on February 22, 2012.
The petition alleged that N.C. had been subjected to an injurious environment in that: (A)
respondent had previously been found unfit as to her other children in May 2009 and March
2010 in certain Tazewell County cases, and there had been no subsequent finding of fitness;
(B) respondent had not completed services that would result in a finding of fitness; (C)
Alfred was bipolar and was not taking his medication; (D) Alfred had anger management
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issues, was recently kicked out of his sister’s home, and was homeless; (E) on June 17, 2011,
respondent was punched in the face by her boyfriend at the time, Joseph R.; (F) on December
20, 2009, respondent’s three-year-old child was injured when the child was struck in the face
by a speaker that was thrown by respondent’s boyfriend at the time, Chad F.; (G) Alfred had
previously made threats to children’s home workers in July 1998; (H) respondent had a
criminal history, which included a retail theft in 2010; and (I) Alfred had a criminal history,
which included reckless conduct in 1984; battery in 1991; battery, criminal damage to
property, and disorderly conduct in 1998; battery, resisting police, aggravated battery, and
possession of an explosive or incendiary device in 2000; threatening a public official in
2004; harassing a witness, unlawful restraint, and resisting a police officer in 2006, and
resisting a police officer in 2011.1
¶5 Respondent and Alfred were represented by separate attorneys in the proceedings and a
guardian ad litem (GAL) was appointed to represent the interests of N.C. At one of the initial
court proceedings in this case, the trial court found that Alfred was the legal father of N.C.
based upon the VAP. Respondent and Alfred filed answers to the neglect petition. In her
answer, respondent stipulated that the State would call witnesses at the adjudicatory hearing
who would support the allegations contained in paragraphs A, C, D, E, F, H, and I, but added
that after the incident described in paragraph E occurred, she called the police and terminated
her relationship with that boyfriend. Respondent claimed insufficient knowledge as to
paragraphs B and G and demanded strict proof as to paragraph B, but not as to paragraph G.
In his answer, Alfred, who at the time was still believed to be the father, stipulated that the
State would call witnesses at the adjudicatory hearing who would support all of the
allegations contained in the petition, except those in paragraph G. Alfred made no response
in his answer as to that paragraph, and paragraph G was later stricken.
¶6 During the course of pre-adjudicatory proceedings, the State moved to have Alfred’s
deoxyribonucleic acid (DNA) tested to determine if he was truly the father of N.C. It does
not appear that any party objected to this motion, and the trial court granted the State’s
request. The State later received the results of the DNA test, which showed conclusively that
Alfred was not the biological father of N.C. The State subsequently filed a “Motion for
Declaration of Non-Paternity,” alleging that the DNA test proved that Alfred was not the
father of N.C.
¶7 A hearing was held on the motion and a Family Core caseworker was questioned by the
parties, although she was not sworn prior to testifying. The caseworker stated that she was
present while an integrated assessment screener inquired about Alfred and respondent’s
relationship, and the caseworker overheard the responses. The screener asked Alfred and
respondent “when they got together,” to which Alfred answered December of 2011. When
the assessment screener pointed out the child was born in February of 2012, Alfred then
stated they had met before then but “got together” in December. The screener did not seek
1
Alfred was initially referenced in the petition as the “father.” However, the petition was
amended and those references were changed during or just before the adjudicatory hearing, after it
was determined that Alfred was not the father of N.C.
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to clarify what Alfred meant by “got together.” Upon further questioning by the screener later
in the intake interview, Alfred said that he and respondent had been intimate in May or June
of 2011.
¶8 The court then heard arguments on the State’s motion. All parties stipulated to the
existence of the VAP and that the dispute was governed by sections 5 and 6 of the Illinois
Parentage Act of 1984 (Parentage Act) (750 ILCS 45/1 et seq. (West 2010)). The State
conceded that it could not bring an action for the nonexistence of the parent and child
relationship under section 7 of the Parentage Act, but argued that it could challenge the VAP
on the basis of fraud, duress, or material mistake of fact pursuant to section 6(d) of the
Parentage Act. The State argued that the VAP was signed under either a mistake of fact or
fraud, because the caseworker’s testimony arguably indicated that Alfred and N.C.’s mother
might not have had sexual relations until December 2011, well after N.C. was conceived.
Both respondent and Alfred argued that the State had not met the burden of proof to
challenge the VAP, and respondent argued that the State’s Attorney did not have standing
to undo the VAP. The GAL argued that a mistake of fact had been established, and further
argued it was not in the minor’s best interests for the trial court to uphold the VAP. At the
conclusion of the hearing, the trial court granted the State’s motion, finding that based on the
DNA results “there clearly was a mistake of fact in that [Alfred] is not the biological father.”
The court also found that granting the motion was in the child’s best interest. The trial court
found that there was no just reason to delay enforcement or appeal of its ruling, and Alfred
filed for leave to file an interlocutory appeal but was denied by this court. In re N.C., No. 3-
12-0365 (2012) (unpublished order under Supreme Court Rule 23).
¶9 On the same day in April 2012 that the declaration of nonpaternity was entered, an
adjudicatory hearing was held on the petition. Prior to the hearing, the petition was modified
to remove the references to Alfred as the father of N.C. The only testimony presented at the
hearing was that of respondent. Called by her own attorney, respondent testified that in the
prior juvenile cases, she had been ordered to complete random drug screens, to complete a
parenting and a domestic violence class, to attend visits with her children, and to attend
recommended counseling. Respondent stated that she had completed most of those
requirements at one time or another but had dropped out of counseling after about five
sessions because she did not feel that it was needed. Prior to argument, the State presented
a factual basis for the stipulated paragraphs of the neglect petition in the form of a proffer to
the trial court of the evidence the State would have presented on those paragraphs, if the
allegations in those paragraphs had been contested. In addition, the court files from the prior
juvenile cases as to respondent’s other children were admitted as an exhibit. At the
conclusion of the adjudicatory hearing, the trial court found that the State had proven all of
the allegations in the petition and that N.C. was a neglected minor.
¶ 10 A dispositional hearing was later held. The dispositional report indicated that respondent
and Alfred were married in March 2012. At the conclusion of the dispositional hearing, the
trial court found that respondent was unfit, made N.C. a ward of the court, and named DCFS
as N.C.’s guardian. Respondent appealed.
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¶ 11 ANALYSIS
¶ 12 Respondent has raised two arguments on appeal. She argues that the trial court’s finding
of neglect was against the manifest weight of the evidence, and also asserts that the trial court
erred by granting the State’s motion for nonpaternity as to Alfred. We will first address the
trial court’s order declaring that Alfred was not the father of N.C. and removing him as a
party from the neglect proceeding.
¶ 13 Respondent has questioned the ability of the State to bring a motion for nonpaternity as
to Alfred. As an initial matter, the State argues that respondent has no standing to raise this
issue on appeal because the trial court’s ruling on this matter was not adverse to her interests.
Standing requires some injury in fact to a legally recognized interest. In re Estate of
Wellman, 174 Ill. 2d 335, 345 (1996). “Any party to the case may seek appellate review from
a final judgment which is adverse to his interests, and whether the party was actually
aggrieved does not determine his right to appeal.” St. Mary of Nazareth Hospital v. Kuczaj,
174 Ill. App. 3d 268, 270-71 (1988). Respondent and her child have a clear interest in the
issue of Alfred’s status as the father because of the actual or potential economic and social
support owed to the child from the legal father. That interest is strengthened by the fact that
respondent and Alfred are now married. Therefore, we conclude that respondent may raise
this issue on appeal.
¶ 14 Respondent asserts that as a matter of statutory construction, the State has no standing
to bring a motion for the declaration of nonpaternity under the Parentage Act. In the
alternative, she asserts that even if the State had standing, the motion should have been
denied because the State failed to show by clear and convincing evidence that the VAP was
made based upon a mistake of fact as to whether Alfred was N.C.’s natural father. The State
argues that its standing to challenge a VAP is not precluded by the Parentage Act, and on the
merits of its challenge, the State argues that the DNA test conclusively proving Alfred is not
the biological father of N.C. was sufficient to establish a material mistake of fact.
¶ 15 As the assertions of the parties indicate, this case involves an issue of statutory
construction. The principles of statutory construction are well established. The fundamental
rule of statutory construction is to ascertain and give effect to the intent of the legislature.
Gaffney v. Board of Trustees of the Orland Fire Protection District, 2012 IL 110012, ¶ 56.
The most reliable indicator of that intent is the language of the statute itself. Gaffney, 2012
IL 110012, ¶ 56. If the statutory language is clear and unambiguous, it must be applied as
written, without resorting to further aids of statutory construction. Gaffney, 2012 IL 110012,
¶ 56. In determining the plain meaning of statutory language, a court will consider the statute
in its entirety, the subject the statute addresses, and the apparent intent of the legislature in
enacting the statute. Blum v. Koster, 235 Ill. 2d 21, 29 (2009). A court may not depart from
the plain language of the statute and read into it exceptions, limitations, or conditions that
are not consistent with the express legislative intent. Gaffney, 2012 IL 110012, ¶ 56. The
standard of review on appeal for an issue of statutory construction is de novo. Gaffney, 2012
IL 110012, ¶ 50.
¶ 16 To resolve these issues, we must look to the provisions of the Parentage Act. The
Parentage Act creates a statutory mechanism for legally establishing a parent-child
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relationship in Illinois. J.S.A. v. M.H., 224 Ill. 2d 182, 198 (2007). The purpose of the
Parentage Act is to further the public policy of this state to recognize the right of every child
to the physical, mental, emotional, and monetary support of his or her parents. 750 ILCS
45/1.1 (West 2010); J.S.A., 224 Ill. 2d at 198. The Parentage Act was intended “to provide
for the support, maintenance and education of illegitimate children so that they [would] not
become wards of the state.” Berg v. Garrett, 224 Ill. App. 3d 619, 622-23 (1992). When
parentage of a child is at issue in a civil action, the provisions of the Parentage Act shall
apply. 750 ILCS 45/9(a) (West 2010).
¶ 17 The Parentage Act contains several ways to establish a father and child relationship: by
presumption (750 ILCS 45/5(a) (West 2010)), by consent (750 ILCS 45/6 (West 2010)), or
by judicial determination (750 ILCS 45/7 (West 2010)). J.S.A., 224 Ill. 2d at 198. Two
presumptions arise from a man’s marriage to the mother of the child. See 750 ILCS
45/5(a)(1), (a)(2) (West 2010). Of relevance to this appeal, sections 5(a)(3) and 5(a)(4)
provide that a man is presumed to be the natural father of a child if the man and the child’s
mother have signed a VAP in accordance with certain other statutory provisions. 750 ILCS
45/5(a)(3), (a)(4) (West 2010). The presumption of parentage resulting from a VAP becomes
conclusive if the VAP is not rescinded within the earlier of (1) 60 days or (2) the date of an
administrative or judicial proceeding relating to the child (including a proceeding to establish
a support order) in which the signatory is a party. 750 ILCS 45/5(b) (West 2010). See also
In re Paternity of an Unknown Minor, 2011 IL App (1st) 102445, ¶ 10 (the term
“conclusive” as used in section 5 of the Parentage Act applies only to the signatories of the
VAP and precludes those parties from subsequently disputing the parent-child relationship
with the child). A proceeding to ratify paternity established pursuant to a VAP is neither
required nor permitted. 750 ILCS 45/6(c) (West 2010). See also Department of Public Aid
ex rel. Allen v. Dixson, 323 Ill. App. 3d 600, 602 (2001) (holding that the Parentage Act
prevents a man who signed a VAP from obtaining DNA testing to determine if he is actually
the biological father). Thus, under the Parentage Act “fatherhood is not always created by
pure genetics.” In re Parentage of G.E.M., 382 Ill. App. 3d 1102, 1109 (2008).
¶ 18 The Parentage Act also contains several mechanisms for challenging an established
parent and child relationship. Under section 7(b), “[a]n action to declare the nonexistence of
the parent and child relationship may be brought by the child, the natural mother, or a man
presumed to be the father under subdivision (a)(1) or (a)(2) of Section 5 of this Act,” and the
statute provides that these actions shall be brought by verified complaint. 750 ILCS 45/7(b)
(West 2010). Section 7(b-5) provides that a man adjudicated to be the father under the
presumptions of section 5 may file for the declaration of the nonexistence of the parent and
child relationship if a DNA test establishes he is not the father. 750 ILCS 45/7(b-5) (West
2010). Section 7(b-5) does not apply to a man who has signed a VAP, however. See People
ex rel. Department of Public Aid v. Smith, 212 Ill. 2d 389, 407 (2004). Instead, a man who
voluntarily acknowledges paternity may only challenge a VAP in court under section 6(d)
of the Parentage Act. Smith, 212 Ill. 2d at 405. Section 6(d) provides that “[a] signed
acknowledgment of paternity entered under this Act may be challenged in court only on the
basis of fraud, duress, or material mistake of fact, with the burden of proof upon the
challenging party.” 750 ILCS 45/6(d) (West 2010). The method to challenge a VAP is
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through a motion under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401
(West 2012)). See Smith, 212 Ill. 2d at 399; Department of Public Aid ex rel. Howard v.
Graham, 328 Ill. App. 3d 433, 435-36 (2002).
¶ 19 With these provisions in mind, we turn to the issue of whether the State had standing to
challenge Alfred’s paternity when it filed its “Motion for Declaration of Non-Paternity” on
the basis of the DNA test showing Alfred was not the biological father. First, we consider
whether the State had standing under section 7(b) or 7(b-5) of the Parentage Act. Section 7(b)
states that an action to declare the nonexistence of the parent and child relationship may be
brought by the child, the natural mother, or a man presumed to be the father under the marital
presumptions of section 5. Under section 7(b-5), a man adjudicated to be the father under the
marital presumptions of section 5 may file for the declaration of the nonexistence of the
parent and child relationship if a DNA test establishes he is not the father. The plain language
of these statutory sections specifies which parties may bring an action to declare the
nonexistence of the parent and child relationship, and we find nothing that authorizes the
State to bring such a motion. As the State conceded at the trial level, it cannot file for
nonpaternity under section 7(b) or 7(b-5).2
¶ 20 We turn next to section 6(d), which provides that a VAP may be challenged on the basis
of fraud, duress, or material mistake of fact. As the State correctly points out, the section of
the statute does not limit who or what party may challenge a VAP. Although there is little
case law on the subject, the supreme court indicated that section 6(d) is a mechanism by
which the presumed father may challenge the voluntariness of his acknowledgment of
paternity; in essence, the father may challenge a VAP by showing his consent was procured
through fraud, duress, or mistake of fact. See Smith, 212 Ill. 2d at 405. Here, although the
State attempted to establish that Alfred signed the VAP due to a material mistake of fact, we
do not believe that the State may assert this cause of action on his behalf. This court has
previously determined that a mother did not have standing to challenge the paternity of the
man presumed to be the father pursuant to a VAP. See G.E.M., 382 Ill. App. 3d at 1117. In
discussing a challenge to a VAP, we stated:
“[A] presumed father has standing to raise his own challenge to the acknowledgment of
paternity based on fraud, duress, or material mistake of fact. [Citation.] The method for
a father to raise such a challenge is to file a ‘proper motion under section 2–1401 of the
Code.’ [Citations.] [The presumed father] has not personally challenged his decision to
step forward as the child’s legal father by filing his own section 2–1401 petition claiming
fraud, duress or material mistake of fact. He has not indicated that he no longer wishes
to serve in the capacity as parent. These issues must be advanced by the father or his
attorney. Mother cannot represent father’s legal interests by bringing them to the
attention of the court, under the pretext of consent, when that is not evident of record in
2
We note that the GAL presumably could, in the name of the child, have filed a motion to
declare the nonexistence of the parent and child relationship under section 7(b) of the Parentage Act,
because that section specifically provides the child may bring such a motion. See In re M.M., 401
Ill. App. 3d 416, 422-23 (2010). However, it was the State’s Attorney, not the GAL, who filed the
motion in this case.
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this case.” (Emphasis in original.) G.E.M., 382 Ill. App. 3d at 1117.
In this case, as in G.E.M., whether the presumed father signed the VAP due to fraud, duress,
or material mistake of fact is a claim relating to the legal interest of the father, and should be
advanced by the father himself. The State, who is not a signatory to the VAP, cannot make
this argument on the father’s behalf.
¶ 21 We reject the State’s argument that because the challenge to Alfred’s paternity occurred
during a proceeding under the Juvenile Court Act of 1987 (705 ILCS 405/1-1 et seq. (West
2010)), it had standing to challenge Alfred’s paternity. The provisions of the Parentage Act
govern issues relating to paternity (see 750 ILCS 45/9(a) (West 2010)), and that statute does
not give the State standing to challenge Alfred’s paternity in the manner it did.
¶ 22 In addition, even if it did have standing to challenge Alfred’s VAP on the basis of a
material mistake of fact, we do not believe that the State met its burden. The Parentage Act
does not define what is required to prove a material mistake of fact in a challenge to a VAP,
but under the common law, to rescind a contract based on a mistake of fact a party must
show a mistake as to “a material feature of the contract, that the mistake is of such grave
consequence that to enforce the contract would be unconscionable, that the mistake occurred
notwithstanding the exercise of due care on the part of the party seeking rescission, and that
the other party can be placed in statu quo.” Keller v. State Farm Insurance Co., 180 Ill. App.
3d 539, 548 (1989). Something is “material” if the party seeking rescission would have acted
differently had he been aware of the fact, or if it concerned the type of information upon
which he would be expected to rely when making his decision to act. Jordan v. Knafel, 378
Ill. App. 3d 219, 229 (2007). It is unclear whether the genetic identity of N.C. is material as
to Alfred, because even after discovering he was not the biological father he still has sought
to uphold the validity of the VAP and remain the legal father of N.C. Also, even if the
genetic identity of N.C. is material, there is nothing to suggest Alfred should not bear the risk
of such a mistake, since by signing the VAP a man gives up his right to a genetic test to
determine fatherhood. Accordingly, we do not believe the DNA test results conclusively
establish a material mistake of fact under the circumstances of this case. Likewise, the State
did not establish Alfred executed the VAP due to fraud.
¶ 23 Based on the foregoing, it was error for the trial court to grant the motion for declaration
of nonpaternity and dismiss Alfred as a party to the neglect proceedings. Alfred, as the
presumed father, had the right to be heard and present evidence at the neglect hearing. Under
the Juvenile Court Act, the parent of a minor has “the right to be present, to be heard, to
present evidence material to the proceedings, to cross-examine witnesses, to examine
pertinent court files and records, and *** the right to be represented by counsel.” 705 ILCS
405/1-5(1) (West 2010). The statute grants these rights to a parent in a neglect proceeding
to protect a parent’s due process rights. See In re K.C., 323 Ill. App. 3d 839, 849 (2001). We
conclude that because Alfred was dismissed from the neglect hearing and the allegations of
neglect concerned his conduct, the trial court’s finding that N.C. was neglected due to an
injurious environment must be reversed and the matter remanded for a new hearing on the
neglect petition, at which Alfred has the right to be heard and present evidence. Because the
focus of a neglect proceeding is on whether the child is neglected, and not whether a parent
is neglectful (see In re Arthur H., 212 Ill. 2d 441, 467 (2004)), this also necessitates reversing
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the adverse finding against respondent as well. Assuming Alfred’s status as the legal father
remains unchanged, both respondent and Alfred should have the opportunity to present
evidence as to whether N.C. is neglected. Therefore, we reverse and remand the matter to the
trial court.
¶ 24 CONCLUSION
¶ 25 For the foregoing reasons, we reverse the judgment of the circuit court of Peoria County
and remand the matter for further proceedings consistent with this opinion.
¶ 26 Reversed and remanded with directions.
¶ 27 JUSTICE CARTER, dissenting.
¶ 28 I respectfully dissent from the majority’s opinion in the present case. I would affirm the
trial court’s judgment and would hold that the trial court did not err in: (1) finding that N.C.
was a neglected minor; or (2) granting the State’s motion to declare nonpaternity as to
Alfred. Because the majority does not address the first issue in its ruling, I will not address
that issue in further detail in this dissent.
¶ 29 In resolving the second issue, contrary to the majority’s opinion, I believe that we must
consider not only the provisions of the Parentage Act, but also the provisions of the Juvenile
Court Act because the State’s challenge to the VAP was made in the context of a juvenile
neglect proceeding. In fact, one of the State’s main assertions on this issue is that it had
standing to seek a declaration of nonpaternity under the Juvenile Court Act because it
became the real party in interest once the juvenile neglect petition was filed. See In re J.J.,
142 Ill. 2d 1, 6 (1991).
¶ 30 The main purpose of the Juvenile Court Act is to ensure the best interests of the minor
and the community, and, if possible, to preserve and strengthen the minor’s family ties. 705
ILCS 405/1-2(1) (West 2010); In re D.S., 198 Ill. 2d 309, 319 (2001). To give effect to that
purpose, the Juvenile Court Act is to be liberally construed. 705 ILCS 405/1-2(4) (West
2010). A juvenile abuse, neglect, or dependency proceeding is not a true adversarial
proceeding but, rather, is one undertaken in the best interests of the minor. See In re J.J., 142
Ill. 2d 1, 8-9 (1991). Under the Juvenile Court Act, when an abuse, neglect, or dependency
petition is filed, both the State and the trial court have a duty to protect the minor’s best
interests. J.J., 142 Ill. 2d at 8; D.S., 198 Ill. 2d at 324. Unlike in other court proceedings, in
a proceeding under the Juvenile Court Act, the trial court may take a more active role and
may even direct the course of the proceedings as necessary to promptly ascertain the
jurisdictional facts and to fully gather information bearing upon the minor’s current condition
and future welfare. 705 ILCS 405/1-2(2) (West 2010); D.S., 198 Ill. 2d at 324.
¶ 31 In the present case, when I consider the relevant provisions of the Parentage Act (as set
forth in the majority’s opinion) in light of the context of the instant action (a juvenile neglect
proceeding) and the relevant provisions of the Juvenile Court Act, I would find that the State
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had standing to file a motion for a declaration of nonpaternity as to Alfred. I would reach that
conclusion for several reasons. First, the actions taken by the State in this case were
authorized by both the Juvenile Court Act and the Parentage Act. The juvenile neglect action
in the instant case was brought in the best interests of the minor, N.C. See 705 ILCS 405/1-
2(1), 2-13(1) (West 2010); J.J., 142 Ill. 2d at 8-9. During the course of those proceedings,
the State and the trial court were obligated to act in N.C.’s best interests. See D.S., 198 Ill.
2d at 324. In my opinion, that obligation could include the filing of a motion for a declaration
of nonpaternity if, under the particular facts of the case at hand, the State or the trial court,
on its own motion, believed that the best interests of the minor required that a determination
of paternity be made. See In re A.K., 250 Ill. App. 3d 981, 984-85 (1993) (the trial court
properly determined the parentage of a minor in a juvenile abuse case under the Juvenile
Court Act, even though a presumption of paternity existed as to the presumed father because
of the presumed father’s marriage to the minor’s mother and despite the fact that the minor’s
mother was precluded from raising the issue due to a prior ruling in a dissolution
proceeding). In fact, the Juvenile Court Act specifically provides for the filing of motions as
necessary to protect the best interests of the minor. 705 ILCS 405/2-13(6) (West 2010).
Moreover, it is clear that under the Parentage Act, the GAL in this case could have filed a
motion for declaration of nonpaternity on the minor’s behalf. See 750 ILCS 45/7(b) (West
2010); M.M., 401 Ill. App. 3d at 422-23. It is also clear and undisputed that the GAL in this
case did, in fact, agree with the State that the best interests of N.C. would not be served by
allowing the VAP to stand. Thus, under the unique facts of the present case, the State was
authorized and, perhaps, obligated under the Juvenile Court Act and the Parentage Act to file
the motion for declaration of nonpaternity.
¶ 32 Second, there is nothing in the Parentage Act that specifically precludes the State from
filing a motion to declare nonpaternity under the facts of the present case. Section 6(d) of the
Parentage Act, which addresses the manner in which a VAP may be challenged, does not
contain any limitation on who may file such a challenge (see 750 ILCS 45/6(d) (West 2010)),
and such a limitation may not be read into the statute by this court on appeal. See Gaffney,
2012 IL 110012, ¶ 56. In addition, to the extent that section 7(b) of the Parentage Act can be
read as a limitation on who may challenge a VAP, that limitation did not prevent the State
from doing so in the present case, since the juvenile neglect petition was brought in the
minor’s best interests and since the minor herself would have had the ability to challenge the
VAP under section 7(b). See 750 ILCS 45/7(b) (West 2010). Indeed, it would seem to be
implied in the spirit and purpose of both the Parentage Act and the Juvenile Court Act to
allow for the filing of such a motion under the facts of the present case to protect the best
interests of the minor and to provide for the minor’s support. See In re S.B., 2012 IL 112204,
¶ 28 (although a court should be cautious about reading words into a statute, it will not
hesitate to read into a statute a qualifying or expanding expression plainly implied by the
general context of the act, which has been palpably omitted and which is necessary to prevent
the legislative purpose from failing in one of its material aspects).
¶ 33 Finally, to the extent that the Parentage Act would require the challenging party, under
the facts of the present case, to establish a material mistake of fact, I believe that such a
showing was made. The DNA evidence conclusively established that a mistake of fact had
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been made about whether Alfred was the natural father of N.C. Although a presumed father
in Alfred’s position may not present DNA evidence to establish a mistake of fact (see People
ex rel. Department of Public Aid v. Smith, 212 Ill. 2d 389, 405-06 (2004)), I see no reason
why such a limitation would apply to the State challenging a VAP in the context of a juvenile
neglect proceeding under the facts of the present case.
¶ 34 For the reasons stated, I respectfully dissent from the majority’s opinion in the present
case. As noted above, I would affirm the trial court’s judgment.
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