Colton S. v. Aura C.-K. (In re D.S.)
| Docket Number | 1-19-2257 |
| Decision Date | 27 April 2021 |
| Citation | 2021 IL App (1st) 192257,197 N.E.3d 92,458 Ill.Dec. 679 |
| Parties | IN RE Parentage of D.S., a Minor (Colton S., Petitioner-Appellant, v. Aura C.-K., Respondent-Appellee). |
| Court | United States Appellate Court of Illinois |
Lou Karnezi, of Karnezis Law Group LLC, of Park Ridge, for appellant.
No brief filed for appellee.
¶ 1 Petitioner-Appellant, Colton S., filed a petition seeking a declaration of parentage and allocation of parental responsibilities for D.S., the daughter of respondent-appellee, Aura C.-K. Respondent moved to strike the petition for parentage pursuant to section 622 of the Illinois Parentage Act of 2015 (Parentage Act) ( 750 ILCS 46/622 (West 2018) ), which prohibits the allocation of parental responsibilities to men who father through sexual assault or abuse or otherwise nonconsensual sexual penetration. The court granted respondent's motion and dismissed petitioner's petition with prejudice. Petitioner now appeals, arguing that dismissal was improper because the court failed to address the effect of consent under section 622(b). For the following reasons, we affirm.
¶ 3 Respondent was born on April 16, 2001. She has known petitioner since December 2016 and, at some point, had a sexual relationship with him. On December 12, 2017, at the age of 16, respondent gave birth to D.S. in Cook County.
¶ 4 On September 12, 2018, pursuant to section 601 of the Parentage Act, petitioner filed a petition to establish parentage and for allocation of parental responsibilities for D.S. In his petition, he alleged that D.S. currently resides with him, that respondent is unfit, and that it is in D.S.’s best interest for petitioner to be adjudicated her father and allocated sole parental and decision-making responsibilities.
¶ 5 On November 13, 2018, respondent filed an answer, pro se , denying that she is unfit to exercise parental responsibilities. Respondent also stated that petitioner "is an unfit parent" and that she had requested a paternity test because she did not believe that petitioner was D.S.’s father.
¶ 6 On December 24, 2018, respondent filed an "Emergency Motion for Temporary Restraining Order Injunctive and Other Relief and an Immediate Surrender of the Child." In the motion, respondent stated that while she was living at her great-grandmother's home, "sometime in September/October 2018 D.S. began to live with [petitioner's] parents and [she] would visit and enjoy parenting time on a daily basis." However, after filing the instant petition, petitioner and his parents began to restrict respondent's ability to see D.S. Respondent argued that she did not consent to petitioner's parenting time and that he was in violation of section 622 of the Parentage Act. As such, respondent requested the court order the immediate return of D.S. to her care. Attached to her emergency motion was an affidavit in which she averred that she was 15 years old, and petitioner was 18 years old when they initiated their sexual relationship. She further averred that petitioner was emotionally and physically abusive throughout their relationship. The court denied the motion, finding that an emergency did not exist.
¶ 7 At some point, the Department of Children and Family Services (DCFS) became involved, and on December 28, 2018, DCFS issued a "safety plan," naming petitioner the custodial parent.
¶ 8 On January 7, 2019, respondent filed an "Affirmative Petition and/or Motion to Strike Petitioner's Petition to Establish Parentage and for Allocation of Parental Responsibilities" pursuant to section 622(f) of the Parentage Act. Again, respondent argued that allocation of parental responsibilities to petitioner was prohibited under section 622 because conception of D.S. was the result of nonconsensual sexual intercourse and she did not consent to petitioner's parenting time.
¶ 9 On February 6, 2019, petitioner filed a response wherein he confirmed that he was 19 years old, and respondent was 16 years old when D.S. was born. Subsequently, on February 13, 2019, petitioner filed a memorandum of law in response to respondent's motion to strike. In the memorandum, petitioner argued that the issue before the court was "whether [respondent] consented to the exercise of [p]etitioner's parental rights." In that regard, he asserted that respondent and her family had consented to petitioner's parenting time and parental responsibilities since D.S. was born and that she is only now objecting to his parenting. Petitioner further argued that it would be in the best interest of D.S. to allow him parental responsibilities.
¶ 10 Attached to the memorandum was the DCFS "safety plan" dated December 28, 2018. The document identified the "safety threat" as a caregiver or member of the household, namely respondent, "whose behavior is violent and out of control." The document stated that respondent was required to attend anger management and parenting classes and would only be permitted supervised visits with D.S. at petitioner's parents’ house. Additionally, two police reports were also attached to the memorandum as exhibits. In the first, respondent reported an online threat made against her grandmother, and in the second, respondent had been reported to police as missing by her grandmother, but she returned home stating that she had just been lost in Chicago.
¶ 11 A hearing was held, at which counsel for respondent contextualized the issue before the circuit court as one of standing. Prior to receiving evidence, the court commented that it would be a "tight hearing" on the issue of standing and not "fitness." The following testimony was presented.
¶ 12 Petitioner testified that he was born on June 1, 1998, and has one child, D.S., with respondent. He confirmed that he is listed on D.S.’s birth certificate as the father. He stated that he met respondent in December 2016.
¶ 13 Respondent testified that petitioner is the father of her child and that she was 15 years old when D.S. was conceived. Respondent never complained to the police that petitioner had sexual intercourse with her against her will. She also testified that petitioner was mentally, physically, and verbally abusive toward her but she never called the police to complain about petitioner's abuse because she was afraid. Finally, respondent testified that she did not consent either to petitioner, or to anyone in his family, parenting her child.
¶ 14 Amy S., petitioner's mother, testified that she met with representatives from DCFS while respondent was present and, on those occasions, respondent did not complain that the sexual intercourse between her and petitioner was nonconsensual. She further testified that respondent never complained to her that petitioner was abusive.
¶ 15 After the hearing, respondent filed a memorandum of law in support of her motion to dismiss, in which she argued that petitioner's reading of the Parentage Act would negate its obvious intent to protect victims from their assailants and would permit rapists to remain involved with their victims and resulting children through coercion or charm. She also argued that a "best interest of the child" analysis is simply not contemplated by section 622. Petitioner filed a reply, reasserting his argument that respondent consented to petitioner's parenting of D.S. "long ago" and that the Act does not support a reading that would allow respondent to simply revoke her consent whenever it is convenient for her.
¶ 16 On October 8, 2019, the circuit court dismissed the petition with prejudice. In doing so, the court concluded that respondent has established by "clear and convincing evidence" that petitioner had "committed an act of non-consensual sexual penetration for his conduct in fathering that child" due to respondent's age, which rendered her "incapable of giving consent to an act of sexual penetration."
¶ 17 This appeal followed.
¶ 19 As an initial matter, we note that respondent has failed to file a brief in this appeal. Generally, we will not act as an advocate for an appellee who fails to file a brief or search the record for the purpose of sustaining the court's judgment. First Capitol Mortgage Corp. v. Talandis Construction Corp. , 63 Ill. 2d 128, 133, 345 N.E.2d 493 (1976). However, failure to file a brief does not require an automatic reversal, and the appellant continues to bear the burden of establishing error. Id. at 131-32, 345 N.E.2d 493. "When the record is simple, and the claimed errors are such that this court can easily decide them on the merits without the aid of an appellee's brief, this court should decide the appeal on its merits." Plooy v. Paryani , 275 Ill. App. 3d 1074, 1088, 212 Ill.Dec. 317, 657 N.E.2d 12 (1995). We find that the record and the issues involved herein are straightforward and clear enough that the appeal should be decided on its merits.
¶ 21 The issue before us is whether the circuit court erred in dismissing with prejudice the petition to establish parentage and allocate parental responsibility or parental time. Before turning to the merits of petitioner's arguments, we must first determine under which section of the Code of Civil Procedure (Code) the dismissal should be analyzed. See 735 ILCS 5/2-615, 2-619 (West 2018). The circuit court did not identify which section of the Code served as the basis for dismissal, and other than section 622(f) of the Parentage Act, respondent cites no other statutory provision as the basis for which the petition should be stricken. Throughout his brief, petitioner argues, in the main, that dismissal under section 2-615 was not appropriate as there are facts that may be proven, which would defeat dismissal. He maintains, however, that dismissal under either section 2-615 or 2-619 of the Code was improper. Thus, reversal is warranted.
¶ 22 Section 2-615 provides that a pleading or portion thereof may be...
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