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In re Devon M.

November 24, 2003

IN RE DEVON M., A MINOR, RESPONDENT-APPELLANT
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
RAS M., RESPONDENT-APPELLEE).
IN RE DONNELL M., A MINOR, RESPONDENT-APPELLANT
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
J.F., RESPONDENT).
IN RE C.P., A MINOR, RESPONDENT-APPELLANT
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
LESLIE P., RESPONDENT).



Appeal from the Circuit Court of Cook County Honorable Michael Brown, Judge Presiding.

The opinion of the court was delivered by: Justice McNULTY

UNPUBLISHED

These three consolidated cases compel us to interpret section 11(a) of the Illinois Parentage Act of 1984 (Parentage Act) (750 ILCS 45/11(a) (West 2000)). That section gives the trial court authority to enter a finding of paternity as a sanction if the alleged father refuses to submit to a blood test to determine paternity, but only "if the rights of others and the interests of justice so require." 750 ILCS 45/11(a) (West 2000). The trial court in all three of the consolidated cases entered findings of paternity as sanctions for refusal to comply with court orders for testing. Both parties in two of the cases ask us to reverse the trial court's judgment. In the third case those parties seek reversal, but the alleged father, who refused to take the paternity test, asks us to affirm the finding of paternity. Because we find no evidence in the record that the rights of others or the interests of justice require the paternity findings, we reverse the judgments in all three cases.

BACKGROUND

In re Donnell M.

R.M. gave birth to Donnell M. on October 16, 1996. On September 26, 2000, the Department of Children and Family Services (DCFS) took Donnell into custody. Two days later the Department petitioned for adjudication of wardship pursuant to section 2-3 of the Juvenile Court Act of 1987 (705 ILCS 405/2-3 (West 2000)). DCFS alleged that R.M. left Donnell and his younger sister alone, without an adequate care plan. The petition listed Donnell's father as "UNKNOWN," but the court ordered K.G., father of some of R.M.'s children, to take a paternity test. After the State's Attorney published notice of proceedings to all unknown persons who might be Donnell's father, the court entered a judgment of default against "unknown fathers."

On November 30, 2000, a caseworker went to R.M.'s home to discuss services and court proceedings. R.M. named R.E. as the father of one of her children, G.H. as the father of another, K.G. as the father of a third, and she could not remember the name of the father of a fourth child. She named J.F. as Donnell's father. DCFS amended its petition for wardship to name J.F. as Donnell's father.

Through diligent searching the caseworker eventually found J.F., and on May 9, 2001, J.F. appeared in court in response to a summons. J.F. said he had never seen Donnell, and he did not know whether Donnell was his child. He admitted that he knew R.M. and he could possibly be Donnell's father. The court ordered him to take a paternity test. The court explained that if the test showed he was Donnell's father, DCFS would investigate him to determine whether he should have custody of Donnell.

When J.F. failed to appear for testing, the State's Attorney petitioned for a finding of contempt. The sheriff could not contact J.F. at the address and telephone number he gave the court.

At a hearing on October 23, 2001, R.M. testified that she believed J.F. was Donnell's father, but she did not know where J.F. lived. A paternity test proved that K.G. was not Donnell's father. The State's Attorney asked for a default finding that J.F. was Donnell's father. The office of the Cook County public guardian (Guardian), appointed to protect Donnell's interests, objected. The court entered a finding of paternity against J.F., using the remedy available under the Parentage Act. 750 ILCS 45/11(a) (West 2000).

The Guardian moved for reconsideration of the paternity finding. The Guardian argued that no party had filed a proper petition under the Parentage Act and, therefore the court lacked authority to enter the paternity determination. The Guardian added that the finding would not serve Donnell's interests, as it would foreclose Donnell from seeking a different adjudication of paternity if evidence should come to light showing that a man other than J.F. was his father. The State's Attorney agreed with the Guardian about Donnell's interests and joined in the request to vacate the finding of paternity.

The court found that the petition for adjudication of wardship met the statutory requirement of a petition alleging paternity. The court then asked whether the Guardian sought a body attachment of J.F. so that the court could obtain the tissue samples necessary for a paternity test. The attorney said that the court should either issue such an attachment or find the evidence insufficient for a determination of paternity.

The court noted that the State's Attorney had not succeeded in serving J.F. with summons for the contempt proceedings. The judge said:

"It seems to this Court that it would be more punitive if this Court were to issue a body attachment which would require that law enforcement officials *** take [J.F.] in custody ***.
*** The Court feels that the Parentage Act allowing the finding of paternity to be entered is a more reasonable exercise of its discretion.
*** [The] Guardian does not have any specific information which would allege that someone other than [J.F.] is the father of the child. Whether or not that would exist would be speculation."

The court denied the motion for reconsideration. The Guardian appeals, and appellee, the State, joins in the request for reversal of ...


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