Arthur S. v. Paul H. (In re T.M.H.)

• Decision Date: 19 November 2019
• Docket Number: No. 2-19-0614,2-19-0614
• Citation: 160 N.E.3d 101,2019 IL App (2d) 190614,442 Ill.Dec. 528
• Parties: IN RE T.M.H., a Minor (Arthur S. and Tiffany S., Petitioners-Appellees, v. Paul H., Respondent-Appellant).
• Court: United States Appellate Court of Illinois

2019 IL App (2d) 190614

160 N.E.3d 101

442 Ill.Dec. 528

IN RE T.M.H., a Minor (Arthur S. and Tiffany S., Petitioners-Appellees,

v.Paul H., Respondent-Appellant).

No. 2-19-0614

Appellate Court of Illinois, Second District.

Opinion filed November 19, 2019

Joseph P. O'Brien, of Opal O'Brien LLC, of Wheaton, for appellant.

Henry D. Kass, of Mirabella Kincaid Frederick & Mirabella, LLC, of Wheaton, for appellees.

JUSTICE HUDSON delivered the judgment of the court, with opinion.

¶ 1 Respondent, Paul H., appeals from an order of the circuit court of Du Page County entering a preliminary injunction enjoining him from any contact or visitation with his minor biological child pending adjudication of a petition for related adoption. For the following reasons, we affirm.

¶ 2 I. BACKGROUND

¶ 3 The record demonstrates that Paul H. and Tiffany S. are the biological parents of T.M.H., who was born on September 9, 2011. They were never married; Paul was named on the birth certificate. On August 13, 2012, Paul filed a complaint to determine parentage in the circuit court of Will County. Paul was initially granted supervised parenting time. On October 17, 2013, the parties entered into an agreed order, which set forth an unsupervised-parenting-time schedule for Paul. However, on November 14, 2014, the Will County circuit court entered a parenting order that reserved parenting time for Paul in light of his incarceration at that time and provided that Paul may petition the court for visitation. The order also prohibited Paul from having contact with Tiffany until further order.

¶ 4 Tiffany married Arthur S. on June 6, 2015. On July 9, 2018, Tiffany and Arthur filed, in the circuit court of Du Page County, a petition for related adoption of T.M.H. The adoption trial court appointed a guardian ad litem .

¶ 5 Subsequently, on October 17, 2018, Paul filed in the Will County parentage case a petition to reinstate parenting time and a motion to transfer the case to the circuit court of Du Page County. Paul stated in the petition that he had been incarcerated for approximately two years and was released in July or August 2016. The parentage case was transferred to the circuit court of Du Page County. At that point, Tiffany and Arthur moved in the parentage case to consolidate the parentage and adoption cases (now both pending in the circuit court of Du Page County) and transfer the matter to the adoption trial court. On March 21, 2019, the parentage trial court denied the motion and appointed a guardian ad litem in the parentage action. Tiffany and Arthur unsuccessfully moved for a substitution of judge as of right before the parentage trial court. Ultimately, the parentage trial court continued all pending matters in the parentage action to July 1, 2019, for status, including Paul's petition to reinstate parenting time as well as his subsequently filed motions to establish a child-support account and to lift any communication restrictions between him and Tiffany and require Tiffany to share information regarding T.M.H.

¶ 6 Meanwhile, in the adoption proceeding, on April 26, 2019, the guardian ad litem filed, pursuant to the trial court's order, a memorandum of law regarding case priority. The memorandum cited section 20 of the Adoption Act ( 750 ILCS 50/20 (West 2018) ), which provides that "Proceedings under this Act shall receive priority over other civil cases in being set for hearing." According to the guardian ad litem 's memorandum, a parentage case is a civil case, and the adoption case would thus take priority pursuant to this provision.

¶ 7 Next in the adoption case, on May 9, 2019, Paul filed a motion to stay the adoption proceeding. On May 14, 2019, Tiffany and Arthur filed a motion to stay the parentage action or, alternatively, a verified petition to enjoin visitation. Their petition alleged that Paul, in the past, had (1) taken T.M.H. and his belongings from Tiffany and refused to return him or advise of his whereabouts, (2) repeatedly threatened Tiffany that he would take T.M.H. from her, (3) threatened that he would "take out" Tiffany, and (4) stated that he carries a knife and possibly a gun and threatened that one day he would "take out" Tiffany and her family and take T.M.H. to Mexico. Tiffany and Arthur also alleged that Paul had pled guilty to violating an order of protection by coming to Tiffany's place of employment and pled guilty to a felony count of harassing a witness (Tiffany). Tiffany and Arthur further alleged that, as a condition of Paul's probation for harassing a witness, Paul was ordered not to have any contact with Tiffany.

¶ 8 On June 20, 2019, following a lengthy discussion on the issue of case priority and the two pending matters (Paul's motion to stay the adoption proceeding and Tiffany's and Arthur's motion to stay the parentage action or, alternatively, petition to enjoin visitation), the adoption trial court stated that the two matters should be heard in conjunction with the issue of case priority. The adoption trial court entered an order continuing the hearing to July 1, 2019, and providing that "[e]ither party may file a responsive pleading within 7 days." Neither party filed any response.

¶ 9 On July 1, 2019, following the parties' arguments, the adoption trial court granted Tiffany's and Arthur's petition to enjoin visitation, entered a preliminary injunction enjoining Paul from any contact or visitation with T.M.H. until the adoption petition is adjudicated, and scheduled trial on the adoption petition. The adoption trial court rejected Paul's argument that an evidentiary hearing was required, given the lack of any response by Paul to the petition to enjoin visitation.

¶ 10 The transcript of the hearing reflects that the court reviewed the requisite elements for a preliminary injunction and found that Tiffany and Arthur had met their burden on all elements. In doing so, the court stated as follows:

"And on this record, the Court finds that there [are] grounds here and there have been the factors established to grant Count Two, the petition to enjoin visitation, preliminary injunction. And it asks to enjoin [Paul] from exercising any visitation with T.M.H. whatsoever and enjoin [Paul] from otherwise having any contact with T.M.H. whatsoever.

The elements are an ascertainable claim for relief or protectible [sic ] interest. That's a threshold issue. And there is an ascertainable right and need of protection.

Likelihood of success on the merits [is] sometimes misinterpreted. It's only necessary that the plaintiff raise a fair question as to the likelihood of success on the merits.

Irreparable harm in the absence of injunctive relief, that there would be irreparable harm and inadequate remedy at law, such as money damages.

And then balancing the equities.

And I'm not going to go through all the facts that have occurred. This goes back many years, involving convictions for felony matters, involving orders of protection and a long history here.

But on this record, the Court finds that Count Two, petitioner has sustained its burden and that petition will be granted.

Count One, the motion to stay the parentage cause of action is denied, although as a practical matter with Count Two being granted, there's probably limited things that could occur in the parentage cause of action with the enjoining of any visitation or contact between [Paul] and [T.M.H.]."

¶ 11 Paul's counsel sought clarification of the nature of the injunctive relief, stating, "my understating is that the first step would be a restraining order that would be entered for 21 days, and then there'd be a hearing on the preliminary injunction subsequent to that." The trial court responded that "[t]he relief that's set forth in Count Two is being granted" and that "there's no mandatory requirement that there be a temporary restraining order before a preliminary injunction is entered." Neither the transcript of the hearing nor the trial court's written order reflects a stated ruling on Paul's pending motion to stay the adoption proceeding.

¶ 12 Notably, after the hearing in the adoption proceeding, the record demonstrates that the parties appeared for the scheduled status hearing before the parentage trial court. The guardian ad litem there reported on the status of the case. He stated that (1) T.M.H. was not aware that Paul is his biological father, (2) any introduction would require professional assistance and would be a lengthy process, and (3) there was thus no urgency to commencing the process. The parentage trial court continued the matter for a status following trial on the adoption petition.

¶ 13 Paul timely appealed, and the parties subsequently filed several motions. On August 15, 2019, we denied Paul's emergency motion to stay the trial court's July 1, 2019, order pending appeal. We also denied Paul's motion to expand the record on appeal to include the entire record in the parentage case. However, we granted Paul's emergency motion for leave to file an amended notice of interlocutory appeal and denied Tiffany's and Arthur's motion to dismiss the interlocutory appeal.

¶ 14 II. ANALYSIS

¶ 15 Paul raises a myriad of objections to the adoption trial court's ruling. Tiffany and Arthur contend that we lack jurisdiction to address several of Paul's arguments, as the arguments involve issues that were not raised in Paul's amended notice of interlocutory appeal. See Ill. S. Ct. R. 303(b)(2) (eff. July 1, 2017) (the notice of appeal "shall specify the judgment or part thereof or other orders appealed from and the relief sought from the reviewing court"); Fitch v. McDermott, Will & Emery, LLP , 401 Ill. App. 3d 1006, 1014, 341 Ill.Dec. 88, 929 N.E.2d 1167 (2010) ("[W]hen an appeal is taken from a specified judgment, the appellate court acquires no jurisdiction to review other judgments or parts of judgments that are not specified in or inferred from the notice of appeal."). As set forth below, with the exception of Paul's argument that the adoption trial...