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In re N.C.

Court of Appeals of Illinois, Third District

July 25, 2013

In re N.C. , a Minor The People of the State of Illinois, Petitioner-Appellee,
Nichole G., Respondent-Appellant

Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois, Circuit No. 12-JA-43 Honorable Mark E. Gilles, Judge, Presiding.

Justice Holdridge concurred in the judgment and opinion.



¶ 1 The State filed a juvenile neglect petition (705 ILCS 405/2-3, 2-13 (West 2010)) seeking to have the minor child, N.C. , adjudicated neglected and made a ward of the court. Respondent's boyfriend, who voluntarily acknowledged he was the father of N.C. , was dismissed from the proceeding on the State's motion after a DNA test revealed he was not the biological father of the child. An adjudicatory hearing was held, and the trial court found that N.C. was neglected. After a dispositional hearing, the trial court found that N.C. 's mother was unfit, made N.C. a ward of the court, and named the Department of Children and Family Services (DCFS) as N.C. 's guardian. N.C. 's mother (respondent) appeals, arguing that the trial court erred in: (1) finding that N.C. was neglected; and (2) granting the State's motion to declare that Alfred C. was not the father of N.C. We reverse and remand.


¶ 3 N.C. was born on February 17, 2012, and was taken into protective custody by DCFS a few days thereafter. Initially, respondent's boyfriend, Alfred C., was believed to be the father. A day after N.C. was born, Alfred signed a voluntary acknowledgment of paternity or parentage (VAP) as to N.C. The VAP provides that, by signing it, the signor understands that the VAP is the same as a court order determining the legal relationship between a father and child. The VAP also notifies the signor that he can request a genetic test as to the child's paternity, and that by signing the VAP he gives up his right to a genetic test.

¶ 4 A juvenile neglect petition was filed in the instant case as to N.C. on February 22, 2012. The petition alleged that N.C. had been subjected to an injurious environment in that: (A) respondent had previously been found unfit as to her other children in May 2009 and March 2010 in certain Tazewell County cases, and there had been no subsequent finding of fitness; (B) respondent had not completed services that would result in a finding of fitness; (C) Alfred was bipolar and was not taking his medication; (D) Alfred had anger management issues, was recently kicked out of his sister's home, and was homeless; (E) on June 17, 2011, respondent was punched in the face by her boyfriend at the time, Joseph R.; (F) on December 20, 2009, respondent's three-year-old child was injured when the child was struck in the face by a speaker that was thrown by respondent's boyfriend at the time, Chad F.; (G) Alfred had previously made threats to children's home workers in July 1998; (H) respondent had a criminal history, which included a retail theft in 2010; and (I) Alfred had a criminal history, which included reckless conduct in 1984; battery in 1991; battery, criminal damage to property, and disorderly conduct in 1998; battery, resisting police, aggravated battery, and possession of an explosive or incendiary device in 2000; threatening a public official in 2004; harassing a witness, unlawful restraint, and resisting a police officer in 2006, and resisting a police officer in 2011.[1]

¶ 5 Respondent and Alfred were represented by separate attorneys in the proceedings and a guardian ad litem (GAL) was appointed to represent the interests of N.C. At one of the initial court proceedings in this case, the trial court found that Alfred was the legal father of N.C. based upon the VAP. Respondent and Alfred filed answers to the neglect petition. In her answer, respondent stipulated that the State would call witnesses at the adjudicatory hearing who would support the allegations contained in paragraphs A, C, D, E, F, H, and I, but added that after the incident described in paragraph E occurred, she called the police and terminated her relationship with that boyfriend. Respondent claimed insufficient knowledge as to paragraphs B and G and demanded strict proof as to paragraph B, but not as to paragraph G. In his answer, Alfred, who at the time was still believed to be the father, stipulated that the State would call witnesses at the adjudicatory hearing who would support all of the allegations contained in the petition, except those in paragraph G. Alfred made no response in his answer as to that paragraph, and paragraph G was later stricken.

¶ 6 During the course of pre-adjudicatory proceedings, the State moved to have Alfred's deoxyribonucleic acid (DNA) tested to determine if he was truly the father of N.C. It does not appear that any party objected to this motion, and the trial court granted the State's request. The State later received the results of the DNA test, which showed conclusively that Alfred was not the biological father of N.C. The State subsequently filed a "Motion for Declaration of NonPaternity, " alleging that the DNA test proved that Alfred was not the father of N.C.

¶ 7 A hearing was held on the motion and a Family Core caseworker was questioned by the parties, although she was not sworn prior to testifying. The caseworker stated that she was present while an integrated assessment screener inquired about Alfred and respondent's relationship, and the caseworker overheard the responses. The screener asked Alfred and respondent "when they got together, " to which Alfred answered December of 2011. When the assessment screener pointed out the child was born in February of 2012, Alfred then stated they had met before then but "got together" in December. The screener did not seek to clarify what Alfred meant by "got together." Upon further questioning by the screener later in the intake interview, Alfred said that he and respondent had been intimate in May or June of 2011.

¶ 8 The court then heard arguments on the State's motion. All parties stipulated to the existence of the VAP and that the dispute was governed by sections 5 and 6 of the Illinois Parentage Act of 1984 (Parentage Act) (750 ILCS 45/1 et seq. (West 2010)). The State conceded that it could not bring an action for the nonexistence of the parent and child relationship under section 7 of the Parentage Act, but argued that it could challenge the VAP on the basis of fraud, duress, or material mistake of fact pursuant to section 6(d) of the Parentage Act. The State argued that the VAP was signed under either a mistake of fact or fraud, because the caseworker's testimony arguably indicated that Alfred and N.C. 's mother might not have had sexual relations until December 2011, well after N.C. was conceived. Both respondent and Alfred argued that the State had not meet the burden of proof to challenge the VAP, and respondent argued that the State's Attorney did not have standing to undo the VAP. The GAL argued that a mistake of fact had been established, and further argued it was not in the minor's best interests for the trial court to uphold the VAP. At the conclusion of the hearing, the trial court granted the State's motion, finding that based on the DNA results "there clearly was a mistake of fact in that [Alfred] is not the biological father." The court also found that granting the motion was in the child's best interest. The trial court found that there was no just reason to delay enforcement or appeal of its ruling, and Alfred filed for leave to file an interlocutory appeal but was denied by this court. In re N.C. , No. 3-12-0365 (2012) (unpublished order under Supreme Court Rule 23).

¶ 9 On the same day in April 2012 that the declaration of nonpaternity was entered, an adjudicatory hearing was held on the petition. Prior to the hearing, the petition was modified to remove the references to Alfred as the father of N.C. The only testimony presented at the hearing was that of respondent. Called by her own attorney, respondent testified that in the prior juvenile cases, she had been ordered to complete random drug screens, to complete a parenting and a domestic violence class, to attend visits with her children, and to attend recommended counseling. Respondent stated that she had completed most of those requirements at one time or another but had dropped out of counseling after about five sessions because she did not feel that it was needed. Prior to argument, the State presented a factual basis for the stipulated paragraphs of the neglect petition in the form of a proffer to the trial court of the evidence the State would have presented on those paragraphs, if the allegations in those paragraphs had been contested. In addition, the court files from the prior juvenile cases as to respondent's other children were admitted as an exhibit. At the conclusion of the adjudicatory hearing, the trial court found that the State had proven all of the allegations in the petition and that N.C. was a neglected minor.

ΒΆ 10 A dispositional hearing was later held. The dispositional report indicated that respondent and Alfred were married in March 2012. At the conclusion of the dispositional hearing, the trial court found that respondent was unfit, made N.C. a ward of ...

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