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People ex rel Department of Public Aid v. Smith

September 05, 2003

THE PEOPLE OF THE STATE OF ILLINOIS EX REL. THE DEPARTMENT OF PUBLIC AID AND VALERIE DAWSON, PETITIONER-APPELLEE,
v.
ROMEL C. SMITH, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 97--F--329 Honorable Jane Hird Mitton, Judge, Presiding.

The opinion of the court was delivered by: Justice Gilleran Johnson

PUBLISHED

The respondent, Romel Smith, appeals from the March 12, 2003, order of the circuit court of Du Page County dismissing his verified amended complaint to declare the nonexistence of a parent and child relationship pursuant to section 7(b--5) of the Illinois Parentage Act of 1984 (the Act) (750 ILCS 45/7(b--5) (West 2002)). We reverse and remand for additional proceedings.

On October 9, 1997, Valerie Dawson gave birth to Kendra Smith, the minor child who is the subject of this litigation. On October 11, 1997, the respondent signed a voluntary acknowledgment of paternity. In this acknowledgment, the respondent waived his right to request DNA testing and accepted the obligation to provide child support.

On December 3, 1997, the State filed a complaint against the respondent to establish child support. An order for support was subsequently entered against the respondent on May 4, 1998, requiring him to pay weekly child support of $38.18.

On April 29, 2002, the respondent engaged DNA Diagnostics Center to perform testing on himself and the child. The results of the DNA test were certified on May 10, 2002. The test results showed that the respondent's probability of parentage was 0% and, therefore, that the respondent was not the child's biological father.

On June 18, 2002, the respondent filed a pro se petition to terminate his child support obligation because he was not the biological father of the child. On September 5, 2002, the State filed a motion pursuant to section 2--615 of the Code of Civil Procedure (the Code) (735 ILCS 5/2--615 (West 2002)) to strike the respondent's petition.

On October 31, 2002, upon retaining counsel, the respondent filed a verified amended complaint to establish non-paternity pursuant to section 7(b--5) of the Act (750 ILCS 45/7(b--5) (West 2002)). In his amended complaint, the respondent alleged that he signed the voluntary acknowledgment of paternity based on Dawson's representations that he was the child's biological father. He explained that he entered active military duty on or about July 8, 1998, just nine months after the child was born. He remained in the service until approximately December 1999. During that time period, he saw the child on only a few occasions. He never had a close relationship with the child or "reasonable and liberal" visitation. The complaint also alleged that in about March 2002, he began to have doubts about his paternity of the child because the child did not share any of his physical characteristics. Consequently, he arranged for a DNA test to be performed on himself and the child. The complaint alleged that the DNA test results, certified on May 10, 2002, showed that he was not the child's biological father. Thus, the complaint requested, among other things, that the court declare the nonexistence of the parent and child relationship between the respondent and the child.

On December 24, 2002, the State filed a motion to dismiss the respondent's verified amended complaint pursuant to section 2--619 of the Code (735 ILCS 5/2--619 (West 2002)). In its motion, the State argued that, since the respondent signed a voluntary acknowledgment of paternity, his only avenue to challenge paternity was on the grounds of fraud, duress, or material mistake of fact, in a petition filed pursuant to section 2--1401 of the Code (735 ILCS 5/2--1401 (West 2002)). As such, the State requested that the respondent's amended complaint be dismissed because it did not comply with section 2--1401 of the Code.

On January 9, 2003, the respondent filed a brief in support of his amended complaint. In his brief, the respondent argued that section 7(b--5) of the Act (750 ILCS 45/7(b--5) (West 2002)) created a new cause of action allowing an adjudicated father to challenge the existence of a parent and child relationship if subsequent DNA tests determined that the adjudicated father was not the natural father. He further argued that his cause of action under section 7(b--5) (750 ILCS 45/7(b--5) (West 2002)) was proper because he had been adjudicated to be the child's father pursuant to the presumptions listed in section 5 of the Act (750 ILCS 45/5 (West 2002)). Additionally, prior to filing his complaint, he obtained DNA test results proving that he was not the child's natural father. He subsequently filed his complaint within two years of obtaining actual knowledge of the relevant facts, in compliance with the time constraints found in section 8(a)(4) of the Act (750 ILCS 45/8(a)(4) (West 2002)).

On March 12, 2003, following a hearing, the trial court dismissed the respondent's verified amended complaint because it was not based on fraud, duress, or mistake of fact, and was not in the form of a section 2--1401 petition. The trial court explained that the law regarding the preclusive effect of voluntary acknowledgments of paternity was very clear. Under section 5(b) of the Act (750 ILCS 45/5(b) (West 2002)), a voluntary acknowledgment of paternity is conclusive, unless the acknowledgment is rescinded within 60 days under the process provided in section 12 of the Vital Records Act (410 ILCS 535/12 (West 2002)). As such, the trial court explained that after 60 days, a challenge to a voluntary acknowledgment of paternity must be based on fraud, duress, or material mistake of fact under section 6(d) of the Act (750 ILCS 45/6(d) (West 2002)) and must come in the form of a section 2--1401 petition (735 ILCS 5/2--1401 (West 2002)). The trial court further stated that allowing the respondent to bring a cause of action under section 7(b--5) of the Act (750 ILCS 45/7(b--5) (West 2002)) would render the acknowledgment provision of the Act meaningless. Thereafter, the respondent filed a timely notice of appeal.

On appeal, the respondent argues that the trial court erred in dismissing his verified amended complaint. The respondent argues that a man adjudicated to be the father of a child pursuant to any of the presumptions contained in section 5 of the Act (750 ILCS 45/5 (West 2002)) may bring a cause of action to declare the nonexistence of the parent and child relationship if he meets the requirements contained in section 7(b--5) of the Act (750 ILCS 45/7(b--5) (West 2002)), even though he signed a voluntary acknowledgment of paternity which he did not rescind.

Section 7(b--5) specifically provides:

"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 ...


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