Appeal from the Circuit Court of Cook County. Case No. 91 D 65188 The Honorable Drella Savage, Judge Presiding
The opinion of the court was delivered by: Justice Gordon
Appellant Anthony Newsome appeals from the Cook County circuit court's granting of a motion to strike and dismiss his verified complaint to establish non-paternity. In this complaint, which was filed in February 2000, Newsome sought a determination that he was not the biological father of appellee Elma Jackson's daughter, Alecia Ashley Jackson. Newsome, who was never married to the mother, Elma Jackson (Elma), had previously been identified as the natural father in a December 1991 complaint filed by Elma to determine the existence of the father-and-child relationship. About a month later (January 22, 1992) Elma and Newsome signed an order of parentage and support under which Newsome, who was named the natural father, was to make support payments. However, DNA testing conducted in December 1998 indicated that Newsome was not the father, and he subsequently filed his complaint to establish non-paternity. Elma moved to strike and dismiss the complaint, and the trial court granted the motion, finding that Newsome was not a presumed father within the scope of section 5 of the Illinois Parentage Act of 1984 (the Parentage Act) (750 ILCS 45/1 et seq. (West 2000)), and he therefore lacked standing to file his complaint.
According to Elma's complaint to determine the existence of the father and child relationship, which was filed on December 6, 1991, she and Newsome engaged in sexual intercourse during the period from March 1989 to September 1990. Elma alleged that she became pregnant as a direct result, and gave birth to Alecia Jackson on December 17, 1989. The trial court subsequently found that Newsome was the natural father of the child. In an order of parentage and support dated January 22, 1992, Newsome was ordered to pay support of $175 per month "by agreement of the parties." Newsome and Elma both signed the order to indicate their agreement.
On May 15, 1997, Newsome filed a pro se motion for blood testing, alleging that Elma had told him that he was not the child's father. On December 4, 1997, Newsome apparently filed a petition to vacate the trial court's January 22, 1992, order establishing the child's parentage. The petition itself does not appear in the record, but a notice of petition filed on December 4, 1997, which is included in the record, gives notice that the petition would be filed pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2000)).
In April 1998, the trial court denied Newsome's section 2-1401 petition. The court noted that it had been more than six years since the January 1992 order was entered. According to the court, Newsome's petition thus was time-barred. *fn1 In denying Newsome's petition, the trial court indicated that Newsome had alleged that Elma had fraudulently concealed his lack of parentage of the child, and he had alleged that the two-year limitation period under section 2-1401 therefore did not apply. However, the court found that Newsome's allegation of fraudulent concealment had not been proven, and that the two-year limitations period did apply. Thus the court found that there were no "legally sufficient grounds for setting aside the [January 1992] judgment." The court also denied Newsome's motion for a blood test.
On February 1, 2000, Newsome filed his verified complaint to establish non-paternity pursuant to subsection 7(b-5) of the Parentage Act (750 ILCS 45/7(b-5) (West 2000)). *fn2 Subsection 7(b-5) amends the Parentage Act to permit a man who has been previously adjudicated to be the father of a child to challenge the adjudication if deoxyribonucleic acid (DNA) tests determine that he is not the natural father.
Newsome alleges in his subsection 7(b-5) complaint that he agreed to the entry of the January 1992 order establishing his parentage "based on the representations of the petitioner, Elma Jackson, that he was the biological father of her child, Alechia Ashley Jackson." On December 29, 1998, tissue was taken from Newsome and from "his purported child, Alechia Ashley Jackson, for the purpose of DNA testing to determine if he [was] the biological father." A "DNA Paternity Report" attached to the subsection 7(b-5) complaint states that:
"The alleged father, ANTHONY NEWSOM, is excluded as being the father of the child, ALECHIA ASHLEY JACKSON." (Emphasis in original.)
For three different genetic systems analyzed with the polymerase chain reaction, the alleged father, ANTHONY NEWSOM[,] failed to match the obligate paternal allele present in the child, ALECHIA ASHLEY JACKSON."
Thus according to the DNA report, Newsome could not have been the child's natural father.
Elma moved to strike and dismiss Newsome's complaint pursuant to sections 615 and 619 of the Code of Civil Procedure (735 ILCS 5/2-615 & 5/2-619 (West 2000)). Elma alleged that she and Newsome were never married to each other, and they "never signed a voluntary acknowledgement of parentage pursuant to the Illinois Department of Public Aid Code or Section 12 of the Vital Records Act." Elma alleged that Newsome was not a presumed father pursuant to section 5 of the Parentage Act (750 ILCS 45/5 (West 2000)), and he therefore lacked standing to file his verified complaint.
Following a hearing, the trial court granted Elma's motion to strike and dismiss the complaint. In an order entered on July 17, 2000, the court found that Newsome "is not a presumed father as outlined in Section 5 of the Illinois Parentage Act of 1984 and lacks standing to file a 45/7(b-5) Verified Counter-Complaint [sic] to Establish Non-Paternity." The court stated that "[t]he order of parentage and support entered on 1/22/92 shall remain in full force and effect."
Newsome filed his notice of appeal on August 14, 2000, seeking reversal of the trial court's July 17, 2000, order dismissing his subsection 7(b-5) complaint.
Newsome urges on appeal that the January 22, 1992, order establishing Alecia Jackson's parentage constituted an acknowledgement of parentage within the meaning of section 5(a)(4) of the Parentage Act, and that Newsome thus is a presumed father within the meaning of section 5. Accordingly, Newsome asserts that he had standing to seek a determination of non-paternity pursuant to subsection 7(b-5) of the Parentage Act. We agree.
Subsection 7(b-5), which was added to the Parentage Act in August 1998, "provides a new cause of action allowing an adjudicated father to challenge the adjudication 'if' DNA tests establish non-paternity." In re Marriage of Lubbs, 313 Ill. App. 3d 968, 970, 730 N.E.2d 1139, 1142 (2000). Prior to this amendment, a man adjudicated to be the father of a child could not reopen the case once a paternity judgment became final, "even where subsequent DNA evidence conclusively establishe[d] non-paternity." Marriage of Lubbs, 313 Ill. App. 3d at 970, 730 N.E.2d at 1142.
Subsection 7(b-5) of the Parentage Act provides that:
"An action to declare the non-existence of the parent and child relationship may be brought subsequent to an adjudication of paternity in any judgment by the man adjudicated to be the father pursuant to the presumptions in Section 5 of this Act if, as a result of deoxyribonucleic acid (DNA) tests, it is discovered that the man adjudicated to be the father is not the natural father of the child. Actions brought by the adjudicated father shall be brought by verified complaint. If, as a result of the deoxyribonucleic acid (DNA) tests, the plaintiff is determined not to be the father of the child, the adjudication ...