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In re N.C.

Court of Appeals of Illinois, Third District

July 25, 2013

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

Held [*]

The trial court’s adjudication that respondent’s child was neglected was reversed and the cause was remanded for a new hearing on the petition where the record showed that respondent’s boyfriend, who had signed a voluntary acknowledgment of paternity, was dismissed from the proceedings pursuant to the grant of the State’s motion for a declaration of nonpaternity based on DNA test results showing that the boyfriend was not the father and findings that the acknowledgment was signed under a mistake of fact, since the State had no standing to challenge the boyfriend’s paternity, and the boyfriend was denied his right to attend the neglect hearing, testify, and present evidence.

Appeal from the Circuit Court of Peoria County, No. 12-JA-43; the Hon. Mark E. Gilles, Judge, presiding.

Louis P. Milot, of Peoria, for appellant.

Jerry Brady, State's Attorney, of Peoria (Terry A. Mertel and Mark A. Austill, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

Panel JUSTICE McDADE delivered the judgment of the court, with opinion. Justice Holdridge concurred in the judgment and opinion. Justice Carter dissented, with opinion.

OPINION

McDADE, Justice.

¶ 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.

¶ 2 FACTS

¶ 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 Non-Paternity, " alleging that the DNA test proved that Alfred was not the father of N.C.

ΒΆ 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 ...


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