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March 17, 1994


Appeal from the Circuit Court of Jackson County. No. 92-F-80. No. 92-F-190. Honorable David W. Watt, Jr. Judge Presiding.

Chapman, Lewis, Rarick

The opinion of the court was delivered by: Chapman

JUSTICE CHAPMAN delivered the opinion of the court:

In May of 1992, the Illinois Department of Public Aid (Department) filed an action on behalf of Glenna Moutria to determine the paternity of Moutria's son, Keith, a minor child. The petition sought a declaration that Kenneth Roach is Keith's father and an order requiring Roach to pay for Keith's support. The Department also sought to recoup the public aid benefits paid to Moutria for Keith's support. Five months after this petition was filed, the Department filed a second paternity action against Kenneth Roach on behalf of the State of Missouri and Missouri resident Connie Barton. This petition alleged that Roach is the father of Barton's son, Kenneth. The petition requested relief similar to that sought in the Moutria petition, an order requiring Roach to pay for Kenneth's support, and reimbursement of Missouri public aid benefits paid to Barton.

Kenneth Roach filed motions to dismiss both petitions. He argued that the doctrines of laches and estoppel apply because the children were both 17 years old when the paternity actions were filed. He argued that the lengthy delay in bringing the paternity actions violated his due process and equal protection rights. The trial court granted the motions to dismiss. The Department appeals. This court consolidated the cases for this appeal. We reverse.

Roach argues that the trial court properly dismissed the petitions because of the inordinate delay in prosecuting the claims against him. He points out that before the filing of these petitions in 1992, the Department had filed similar petitions against him in 1988 and in 1989. The earlier petitions were voluntarily dismissed. Attached to respondent's brief are copies of said purported petitions, and the Department does not challenge their accuracy. It is the respondent's position that when the State chose to voluntarily dismiss these paternity claims near the end of the limitations period, the State waived its right to prosecute the claims anew and is barred from doing so.

There is no dispute that the Department was within the statutory limitations period in filing the petitions in this case because both minors were receiving public aid benefits at the time the petitions were filed.

"An action brought by or on behalf of a child shall be barred if brought later than 2 years after the child reaches the age of majority; however, if the action on behalf of the child is brought by a public agency, it shall be barred 2 years after the agency has ceased to provide assistance to the child." 750 ILCS 45/8(a)(1) (West 1992).

The question on appeal is whether the circuit court erred in dismissing the petitions because it concluded that respondent's due process rights were compromised. Procedural due process mandates that a party be afforded notice and an opportunity to be heard and to conduct a defense. ( In re Marriage of Blaisdell (1986), 142 Ill. App. 3d 1034, 1044, 492 N.E.2d 622, 628, 97 Ill. Dec. 186.) The United States Supreme Court discussed procedural due process in Little v. Streater (1981), 452 U.S. 1, 68 L.Ed.2d 627, 101 S.Ct. 2202:

"Due process, 'unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.' [Citation.] Rather, it is 'flexible and calls for such procedural protections as the particular situation demands.' * * * 'Due process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial processmust be given a meaningful opportunity to be heard.' Little, 452 U.S. at 5, 68 L.Ed.2d at , 101 S.Ct. at 2205.

The procedural safeguards mandated by due process in a particular case vary, depending upon:

"(1) the significance of the private interest which will be affected by the official action, (2) the risk of the erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional or substitute procedural safeguards, and (3) the significance of the State interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural safeguards would entail." People v. Orth (1988), 124 Ill. 2d 326, 334, 530 N.E.2d 210, 214, 125 Ill. Dec. 182.

The first factor in the due process equation, the importance of the private interest in a paternity action, is significant. Establishing paternity creates a parent-child relationship which before then was legally nonexistent. The knowledge that one is or is not the father of a child can have a profound emotional impact on the parties, whether that impact is positive or negative. Moreover, substantial support obligations attach when a parent-child relationship is established, and these impose upon the respondent to a paternity action a fiscal burden which before then was nonexistent.

The second factor, the risk of an erroneous deprivation of such interest, in this case an erroneous finding of paternity, is minimal. Section 11 of the Illinois Parentage Act of 1984 provides that either party to a paternity action may request blood testing for the mother, child, or alleged father to determine inherited characteristics; in addition, any party may demand that other experts, qualified as examiners of blood or tissue types, may perform independent tests under order of court, the results of which may be offered in ...

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