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In Re T.P.S. and K.M.S., Minor Children v. Deanna C.S

October 9, 2012


Appeal from the Circuit Court of Williamson County. No. 12-F-2 Honorable Brian D. Lewis, Judge, presiding.

The opinion of the court was delivered by: Justice Stewart


Decision filed 10/09/12. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

JUSTICE STEWART delivered the judgment of the court, with opinion. Justices Spomer and Wexstten concurred in the judgment and opinion.


¶ 1 The petitioner, Catherine D.W. (Cathy), and the respondent, Deanna C.S.

(Dee), were involved in a long-term romantic relationship. During their relationship, the parties agreed that Dee would conceive two children by artificial insemination and that they would raise the children together as equal coparents. Two children were conceived by artificial insemination as a result of this agreement, T.P.S. and K.M.S. T.P.S. was born in January 2006, and K.M.S. was born in October 2008. In September 2009, Cathy and Dee's relationship ended, and Dee has prevented Cathy from visiting or communicating with the children since October 2010. Cathy filed a petition to establish parentage, custody, visitation, and child support with respect to the children. Dee moved to dismiss Cathy's petition, arguing that Cathy lacked standing to seek custody or visitation with the minor children because she is not a biological or adoptive parent. The trial court granted Dee's motion and entered a judgment dismissing Cathy's petition with prejudice. Cathy now appeals the circuit court's judgment. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings on Cathy's petition.


¶ 3 Initially, we note that the issue of Cathy's standing to seek custody and visitation is presented to us by way of the circuit court's dismissal of her petition pursuant to Dee's motion that was labeled as a motion brought under section 2-615 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-615 (West 2010)). Cathy argues that a lack of standing is an affirmative matter that is properly raised only by filing a motion under section 2-619(9) of the Code (735 ILCS 5/2-619(9) (West 2010)). Under section 2-615, a complaint may be dismissed for a failure to state a cause of action because of factual or legal insufficiency. In re Parentage of Scarlett Z.-D., 2012 IL App (2d) 120266, ¶ 19, ___ N.E.2d ___. A motion to dismiss pursuant to section 2-619(9) of the Code admits the legal sufficiency of the complaint but asserts other affirmative matters that avoid or defeat the allegations contained in the complaint. Id.

¶ 4 In evaluating a circuit court's dismissal, we look at the substance of the motion to dismiss, not its label. See Winters v. Wangler, 386 Ill. App. 3d 788, 793, 898 N.E.2d 776, 780 (2008). In addition, in the present case, Cathy herself responded to Dee's motion by filing her own "affirmative matter" by way of affidavits and exhibits in support of her standing argument. Accordingly, Cathy was able to address the substance of the standing issue in response to Dee's motion and was not prejudiced by Dee's labeling of her motion. Therefore, we will review the substance of Dee's motion as one raising affirmative matter pursuant to section 2-619(9) of the Code.

Accordingly, our factual background is based on all well-pleaded facts contained in the pleadings, affidavits, and depositions found in the record, interpreted in the light most favorable to Cathy. Doe A. v. Diocese of Dallas, 234 Ill. 2d 393, 396, 917 N.E.2d 475, 477 (2009).

¶ 5 Cathy and Dee began their committed, romantic relationship in 2000. During their relationship, Cathy and Dee shared their income and family expenses, had a joint bank account, and jointly owned their home and other tangible property. Dee listed Cathy as her domestic partner when her employer offered domestic partner benefits. Dee also listed Cathy as the beneficiary for death benefits. They lived together and socialized with friends and family as a couple.

¶ 6 In 2004, they decided to expand their family by having children together through artificial insemination. They agreed that Dee would give birth to their children because she was the younger of the two and had health insurance through her employer. They also agreed that Cathy would be a full and equal coparent of any child born through artificial insemination. In addition, they agreed that Cathy would be the children's primary caregiver.

¶ 7 Once the parties agreed to expand their family through artificial insemination,

Cathy was actively involved in each step of the planning for the children's births, including helping to arrange and pay for the artificial inseminations. Cathy attended prenatal appointments and maternity classes with Dee. Dee gave birth to two children as a result of artificial insemination: T.P.S., who was born in January 2006, and K.M.S., who was born in October 2008. Cathy was present and participated in the delivery of each child. After T.P.S.'s birth, the hospital gave Cathy an unofficial, honorary birth certificate that listed Cathy as Dee's "partner" and as one of T.P.S.'s parents. Many of Cathy's family members were present for T.P.S.'s birth, and Cathy and Dee jointly sent out birth announcements to family and friends.

¶ 8 At all times when Cathy and Dee were together, both prior to and after the children's births, Dee agreed that Cathy was to have legal parental rights to the children that were equal to hers. In addition, the parties agreed that Cathy would be the children's primary caregiver and would stay at home with the children. Prior to T.P.S.'s birth, Dee executed a will that directed Cathy to have sole responsibility for T.P.S. in the event of her death. Cathy and Dee also consulted with an attorney to discuss pursuing a second-parent adoption for Cathy. Their attorney advised them that the circuit court in Williamson County would not grant a second-parent adoption to a same-sex, nonbiological parent. Instead, their attorney recommended the creation of a coguardianship as the quickest and surest means of securing Cathy's legal rights that were as close as possible to parental rights. Therefore, after the birth of each child, Cathy and Dee jointly petitioned the circuit court to make them equal coguardians.

¶ 9 The parties filed the joint petition for the coguardianship of T.P.S. approximately two months after his birth. They alleged that they both shared in his daily care and provided for his financial needs. The parties filed the joint petition for the coguardianship of K.M.S. approximately five months after her birth. They alleged that Cathy shared in the daily needs of the child and that K.M.S. had a close bond with Cathy. In both cases, the circuit court appointed a guardian ad litem (GAL), who supported the coguardianship as being in the children's best interests.

¶ 10 In the case concerning the coguardianship for T.P.S., the GAL reported that Cathy and Dee had been in a "lengthy relationship," that they had lived together for five years, and that they both cared for and loved the child. The GAL for K.M.S. reported that the two parties had been in a relationship for eight years and shared in the care of K.M.S. The GAL further noted that Cathy was "the primary care giver of K.M.S. during the week and the parties want to ensure that she will be able to access medical care for K.M.S. and that Cathy would have legal rights to continue caring for K.M.S. if something were to happen to Dee."

¶ 11 The circuit court granted the coguardianship in both cases, finding that it was in the best interests of the children.

¶ 12 After the birth of each child, Cathy fulfilled the role of primary caregiver to the children pursuant to the parties' agreement and provided love and emotional, psychological, financial, and educational support for each child. During the weekdays, Cathy stopped working at a video store that she owned in order to care for the children. Cathy was actively involved in every decision involving the children's care, including taking the primary responsibility for obtaining their medical care, overseeing T.P.S.'s attendance at preschool, attending parent-teacher conferences on his behalf, and arranging for the children's feeding, clothing, learning, and play. The children called Cathy "mom." Dee sent birthday cards and a Mother's Day card to Cathy from her and the children describing Cathy as "mom." Cathy's extended family was also the children's extended family, and they referred to Cathy's mother as their "Grandma Pat."

¶ 13 In September 2009, Dee ended her relationship with Cathy and moved out of their home. After Dee moved out, the children continued to stay with Cathy during the day, and they stayed with Cathy two or three nights per week. Cathy continued to buy the children food, clothing, medical supplies, toys, and other items. In July 2010, however, Dee petitioned the court in each guardianship case to end Cathy's coguardianship, and since October 2010, Dee has kept Cathy from seeing the children or having any communication with the children, including birthday or Christmas gifts for the children, and has prevented the children from having Cathy's physical, mental, emotional, and financial support.

¶ 14 Cathy objected to Dee's petitions to terminate the coguardianships, arguing that terminating the guardianships would not be in the children's best interests. In the guardianship proceeding, the children's primary care physician, Dr. Sean McCain, attested in an affidavit to the bond that has formed between Cathy and the children. Dr. McCain stated in his affidavit that he believed that Cathy had always served as a mother to the children and that the children are attached to Cathy as their mother. Likewise, a nurse practitioner for the children, Stacy Gardner, stated in her affidavit that Cathy brought the children in for treatment of acute matters such as colds and sinus infections. She believed that Cathy was very nurturing and attentive toward the children and that the children considered Cathy to be their mother. In affidavits filed in the guardianship proceedings, several family friends also attested to Cathy's close relationship to the children as their mother.

¶ 15 The circuit court initially granted Dee's petitions to end Cathy's coguardianships without conducting an evidentiary hearing on Cathy's objections or considering the children's best interests, holding that Cathy lacked standing to challenge Dee's petition because she was not a biological or adoptive parent of the children. This court, however, reversed the circuit court's dismissal, holding that Cathy does have standing as a coguardian to oppose Dee's petitions. This court remanded the guardianship cases to the circuit court for a hearing on Dee's petitions and Cathy's objections. In re T.P.S., 2011 IL App (5th) 100617, ¶ 19, 954 N.E.2d 673.

¶ 16 The issues raised in the guardianship proceedings are not before us in the present appeal. Instead, the issues in the present case concern a separate petition that Cathy filed on January 5, 2012, to establish her parentage, custody, visitation, and child support with respect to the two children. Cathy's standing to bring this petition is the central issue before us in the present appeal.

ΒΆ 17 Cathy's petition alleged six different theories to establish her right to custody and visitation with the children. Count I alleged a right to custody and visitation under the common law, count II alleged a breach of an oral contract for custody and other parental rights, count III alleged a promissory estoppel theory, count IV alleged an implied contract, count V alleged a due process right of a parent under the ...

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