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In re Parentage of W.J.B.

Court of Appeals of Illinois, Second District

December 15, 2016

In re PARENTAGE OF W.J.B., a Minor,
v.
Rachel H., Respondent-Appellant. William B., Petitioner-Appellee,

         Appeal from the Circuit Court of Du Page County. No. 14-F-171 Honorable Linda E. Davenport, Judge, Presiding.

          BURKE JUSTICE delivered the judgment of the court, with opinion. Justices Schostok and Birkett concurred in the judgment and opinion.

          OPINION

          BURKE JUSTICE

         ¶ 1 Petitioner, William B., filed a parentage petition in Du Page County to establish a parent-child relationship with the minor, W.J.B., pursuant to the Illinois Parentage Act of 1984 (750 ILCS 45/1 et seq. (West 2012)). Respondent, Rachel H., filed a motion to dismiss pursuant to section 2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-619.1 (West 2012)), alleging lack of both personal and subject-matter jurisdiction. The trial court found that it had jurisdiction over respondent and entered a preliminary injunction preventing respondent from removing the minor from the State of Illinois. Respondent filed a petition for leave to appeal, pursuant to Supreme Court Rule 306(a)(5) (eff. Feb. 26, 2010), which we granted. The sole issue raised on appeal is whether the trial court erred in finding that it had personal jurisdiction over respondent. We affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 The parties are the natural parents of the minor, who was born on April 25, 2011. The parties are not married. Petitioner is a resident of Illinois. On February 28, 2014, petitioner filed a petition to establish parentage.

         ¶ 4 Respondent filed a motion to dismiss the petition on March 25, 2014, for lack of personal and subject-matter jurisdiction, alleging the following. Respondent is a resident of North Carolina, and the minor resided there with her. Respondent underwent emergency surgery due to massive internal bleeding, and on October 5, 2013, the minor's paternal grandparents, who reside in Illinois, took the minor to Illinois to allow respondent time to rest and recover after her surgery. They agreed to allow the minor to stay with them only on a temporary basis while she recovered. Respondent made arrangements to pick up the minor from the grandparents in December 2013; however, she agreed to extend his time there on a temporary basis to allow petitioner to visit with the minor while he was in Illinois for the Christmas holiday. Petitioner had been stationed in California due to his employment in the United States military. Respondent attempted to make arrangements to pick up the minor in February 2014, but the grandparents would not respond to her communications. Respondent finally picked up the minor on March 15, 2014.

         ¶ 5 On March 28, 2014, petitioner filed an emergency motion for a temporary injunction and for an order to return the minor to Illinois.

         ¶ 6 On April 1, 2014, the trial court held an evidentiary hearing on respondent's motion to dismiss and on petitioner's motion for emergency relief. At the hearing, respondent testified that she had "significant surgery" at the end of September 2013. She spoke to petitioner on the phone about it, and he said that he would call his mother. The minor still lived with respondent until his grandmother and aunt flew out to North Carolina in October 2013 to pick up the minor and bring him to Illinois while respondent recovered from the surgery. When they discussed the minor's care, respondent told them that the minor would go out to visit with them for the time being but that he would be coming back. "They were helping me so that I had time to recover from the surgery that I had, because there would be bleeding for a long period of time, and that was our agreement, is that [the minor] would go to visit and he would come back." Respondent further testified that she wanted to pick up the minor after Christmas 2013, so that petitioner could visit him in Illinois while he was on furlough for the Christmas holiday. However, she did not pick up the minor after the Christmas holiday, because she was told that the weather was too bad and "there was too much snow."

         ¶ 7 On cross-examination, respondent testified that the minor resided with his grandparents from October 5, 2013, through March 15, 2014. During that time, respondent did not visit the minor at all. The surgery was performed on an outpatient basis at the end of September and she was given three days off from work following the surgery.

         ¶ 8 Respondent stated that she was served with the parentage petition on March 13, 2014, and drove the following day to Illinois to pick up the minor. Respondent had a valid driver's license and an operational vehicle while the minor was in Illinois. Respondent further testified that, although her fiancé lived with her after her surgery, she chose to have the grandparents care for the minor.

         ¶ 9 Following respondent's testimony, petitioner requested a directed finding. Petitioner argued that, based on respondent's own testimony, this was more than just a visit; there was no timetable, and the pickup occurred only after she had been served on March 13. Respondent argued that the minor was here because, "by coming out to pick him up, [the grandparents] offered to watch him after [respondent's] surgery. There was certainly nothing that [respondent] has testified to that was a definitive act on her behalf to bring the child out to Illinois during that time in question."

         ¶ 10 In granting the directed finding, the trial court noted that section 201 of the Illinois Uniform Interstate Family Support Act (the Act) (750 ILCS 22/201 (West 2012)) provides the bases for jurisdiction over a nonresident when a parentage action is brought. The court pointed to section 201(a)(5) of the Act (750 ILCS 22/201(a)(5) (West 2012)), which applies if the child resides in this state as a result of the acts or directives of the nonresident.

         ¶ 11 In applying section 201(a)(5), the court noted that respondent testified that, in the summer of 2013, she drove to Ohio to meet the paternal grandparents part way so that they could bring the minor to Illinois. "Thereafter, [respondent] entered into an agreement, allegedly, with the natural father and the paternal grandparents to have the child placed here in Illinois. Under her testimony, it was for a visit, a five and a half plus month visit. When [respondent] had a couple days off work for the surgery, she apparently could have come, she had a functioning car, [and] she did not." The court further stated: "When [respondent's] position in her testimony was that there was no reason for [respondent] to [pick up the minor] when [she] thought [petitioner] was going to be home after Christmas, that's from October 5th through December 25th. That means in January and in February, and then for the first two weeks of March, [respondent] still did not come. She took no steps to try to retrieve the child, at all, that I heard testimony of today. So I believe under section [201(a)(5)] ...


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