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10/29/97 MATTER PETITION K.J.R. AND D.F.R.

October 29, 1997

IN THE MATTER OF THE PETITION OF K.J.R. AND D.F.R., PETITIONERS-APPELLEES, TO ADOPT O.J.M. AKA O.J.K., A MINOR. E.M.H., INTERVENOR-APPELLANT.


APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JAMES HENRY, JUDGE PRESIDING.

Released for Publication December 5, 1997.

The Honorable Justice Gordon Delivered The Opinion OF The Court. Cahill and Leavitt, JJ., concur.

The opinion of the court was delivered by: Gordon

The Honorable Justice GORDON DELIVERED THE OPINION OF THE COURT:

The appellant, E.M.H., the putative father of O.J.M., a minor, appeals from the section 2-619 (735 ILCS 5/2-619 (West 1996)) dismissal of his petition to determine the existence of the father and child relationship and from the judgment order of adoption entered in favor of the petitioners, the adoptive parents.

The facts alleged in the pleadings show that, during her pregnancy, the mother of the child, H.K., reached an agreement with the petitioners, K.J.R. and D.F.R., to turn the child over to them upon its birth. Prior to the child's birth, the petitioners also discussed the adoption plan with the man alleged by H.K. to have been the child's father, T.M. T.M. was subsequently listed as the father on the child's birth certificate issued on January 23, 1996. The child was born on November 12, 1995; and upon its discharge from the hospital on November 13, 1995, the child was turned over to the petitioners. Two days later, on November 15, 1995, the petitioners filed their petition to adopt in which they alleged the consent of the child's parents. On November 20, 1995, T.M., the alleged father, attended an interview at the office of the Cook County Department of Support Services and signed a Final and Irrevocable Consent to Adoption. The child's mother did not appear for her appointment also scheduled with that agency on that date. Pursuant to the petitioners' motion, the court entered an interim order on November 20, 1995 terminating the parental rights of T.M. and awarding temporary custody of the child to the petitioners.

On December 6, 1995, the petitioners filed an amended petition to adopt. In count I they sought termination of the biological mother's parental rights alleging that she was an unfit person as defined by section 1 of the Adoption Act (750 ILCS 50/1 (West 1994)). The petitioners alleged that the mother was depraved; habitually addicted to drugs, other than those prescribed by a physician for at least one year prior to commencement of the adoption proceeding; unable to discharge parental responsibilities due to mental impairment or mental illness; and had failed to protect the child from conditions within the environment injurious to the child's welfare. In counts II and III of their amended petition, the petitioners sought permanent custody and a "best interests" hearing pursuant to section 20 of the Adoption Act (750 ILCS 50/20 (West 1994)) and sections 601 and 602 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/601, 602 (West 1994)).

On December 22, 1995, the mother filed a verified motion to vacate the interim custody order; and on January 17, 1996 she filed a verified motion for visitation. On February 8, 1996, E.M.H., the appellant, filed, for the first time, a motion for leave to intervene and a motion for blood tests to determine whether he was the child's father. In this combined motion, E.M.H. alleged that he was informed by the child's mother, on or about January 31, 1996, that he, not T.M., was the father of the child. E.M.H. admitted to having sexual relations with H.K. on several occasions during the period of January to March 1995 within which time the child could have been conceived. The matter was continued by order of the court to February 27, 1996. On February 27, 1996, E.M.H. filed a second motion for leave to intervene and for blood tests. In that unverified motion he alleged new matter, namely, that he had had sexual relations with H.K. on several occasions and that, therefore, he believed that he could be the father of the child. He further alleged that H.K., prior to the birth of the child, told him that he was not the father of the child and, because of that, he had "no notice of his possible paternity until January 31, 1996." E.M.H. was granted leave to file his motion for leave to intervene and for blood tests on February 27, 1996; and the matter was continued to April 16, 1996.

On March 12, 1996, the birth mother filed a verified response to the amended petition to adopt and also moved to dismiss counts II and III of that petition. In her response, she denied that T.M. was the biological father of the child. At the hearing on April 16, 1996, the court reserved ruling and hearing on the birth mother's pending motions; set trial on count I of the amended adoption petition; and directed the commencement of blood testing, with the results to be held in camera. The court also entered an order granting E.M.H. leave to file a "proper" petition to intervene and a parentage petition. E.M.H. filed a petition to determine the existence of the father and child relationship on April 26, 1996. The petitioners moved to dismiss E.M.H.'s motion for leave to intervene and for blood tests and his parentage petition. Hearing on that motion was set for July 2, 1996.

During the period of April to June 1996, the birth mother did not respond to petitioners' discovery requests and failed to appear for her deposition. On May 21, 1996, the court granted the motion of her counsel to withdraw his appearance. On June 6, 1996, petitioners moved to strike the birth mother's answer and moved for an order holding her in default and terminating her parental rights. On June 13, 1996, finding that due notice had been given the birth mother, the court struck her answer and entered a default order sustaining the allegations in the amended adoption petition that H.K. was depraved, habitually addicted to drugs, unable to discharge parental responsibilities because of mental impairment or mental illness and that she failed to protect the child from an injurious environment. The court thereafter terminated H.K.'s parental rights.

At the July 2, 1996 hearing on the petitioners' motion to dismiss E.M.H.'s motion for leave to intervene and his parentage petition, the court ruled that it would allow E.M.H. to file his petition to intervene. It dismissed E.M.H.'s parentage petition pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1996)) finding that E.M.H.'s petition was barred because E.M.H. failed to register with the Putative Father Registry within 30 days of the child's birth as required by section 12.1 of the Adoption Act (750 ILCS 50/12.1 (West 1994)). *fn1 On July 3, 1996, the court entered its order granting E.M.H.'s motion for leave to intervene and for blood tests; granted E.M.H. leave to file his parentage petition; granted the petitioner's motion to dismiss E.M.H.'s parentage petition with prejudice; and ordered disclosure of the blood test results to E.M.H. and the petitioners through their attorneys. By separate order, also on that date, the court entered judgment on the amended adoption petition adjudicating the child to be the legal child of K.J.R. and D.F.R. and changing his name to H.D.R. E.M.H. filed his notice of appeal on July 30, 1996.

On appeal, E.M.H., the putative father, argues that the trial court erred in dismissing his parentage petition by reason of his failure to comply with the provisions of the Adoption Act regarding the timely registration with the Putative Father Registry. E.M.H. contends that his failure to register should be excused because of the biological mother's misrepresentation concerning the identity of the child's father. E.M.H. alternatively argues that the putative father registry provisions of the Adoption Act deprived him of his constitutional equal protection and due process rights.

I. Putative Father Registry Provisions

Section 12.1 of the Adoption Act, which became effective on July 3, 1994, created the Putative Father Registry to be maintained by the Department of Children and Family Services. 750 ILCS 50/12.1 (West 1994). The purpose of that registry is to determine the identity and location of putative fathers whose paternity has not been established in order that they may be given notice of any ensuing adoption proceedings. 750 ILCS 50/12.1 (West 1994). Subsection (b) of that provision States that the "putative father may register with the Department before the birth of the child but shall register no later than 30 days after the birth of the child." 750 ILCS 50/12.1(b) (West 1994). Subsection (g) of that provision further states:

"Except as provided in Section 8(b) of this Act, *fn2 a putative father who fails to register with the Putative Father Registry as provided in this Section is barred from thereafter bringing or maintaining any action to assert any interest in the child, unless he proves by clear and convincing evidence that:

(1) it was not possible for him to register within the time period specified in subsection (b) of this Section; and

(2) his failure to register was through no fault of his own; and

(3) he registered within 10 days after it became possible ...


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