In re Devon M.
| Decision Date | 24 November 2003 |
| Docket Number | No. 1-02-1271., No. 1-02-0897, No. 1-02-0138 |
| Citation | 801 N.E.2d 128,344 Ill. App.3d 503,279 Ill.Dec. 836 |
| Parties | In re DEVON M., a Minor, Respondent-Appellant (The People of the State of Illinois, Petitioner-Appellee, v. Ras M., Respondent-Appellee). In re Donnell M., a Minor, Respondent-Appellant (The People of the State of Illinois, Petitioner-Appellee, v. Respondent). In re C.P., a Minor, Respondent-Appellant (The People of the State of Illinois, Petitioner-Appellee, v. Leslie P., Respondent). |
| Court | United States Appellate Court of Illinois |
Patrick T. Murphy, Public Guardian of Cook County (Charles P. Golbert and Lisa D. Huge, of counsel), for Appellants.
Richard A. Devine, State's Attorney of Cook County (Renee Goldfarb, Kenneth T. McCurry and Nancy Grauer Kisicki, of counsel); Rhonda L. Casady, Chicago, for Appellees.
These three consolidated cases compel us to interpret section 11(a) of the Illinois Parentage Act of 1984 (Parentage Act) (750 ILCS 45/11(a) (West 2000)). That section gives the trial court authority to enter a finding of paternity as a sanction if the alleged father refuses to submit to a blood test to determine paternity, but only "if the rights of others and the interests of justice so require." 750 ILCS 45/11(a) (West 2000).
The trial court in all three of the consolidated cases entered findings of paternity as sanctions for refusal to comply with court orders for testing. Both parties in two of the cases ask us to reverse the trial court's judgment. In the third case those parties seek reversal, but the alleged father, who refused to take the paternity test, asks us to affirm the finding of paternity. Because we find no evidence in the record that the rights of others or the interests of justice require the paternity findings, we reverse the judgments in all three cases.
In re Donnell M.
R.M. gave birth to Donnell M. on October 16, 1996. On September 26, 2000, the Department of Children and Family Services (DCFS) took Donnell into custody. Two days later the Department petitioned for adjudication of wardship pursuant to section 2-3 of the Juvenile Court Act of 1987 (705 ILCS 405/2-3 (West 2000)). DCFS alleged that R.M. left Donnell and his younger sister alone, without an adequate care plan. The petition listed Donnell's father as "UNKNOWN," but the court ordered K.G., father of some of R.M.'s children, to take a paternity test. After the State's Attorney published notice of proceedings to all unknown persons who might be Donnell's father, the court entered a judgment of default against "unknown fathers."
On November 30, 2000, a caseworker went to R.M.'s home to discuss services and court proceedings. R.M. named R.E. as the father of one of her children, G.H. as the father of another, K.G. as the father of a third, and she could not remember the name of the father of a fourth child. She named J.F. as Donnell's father. DCFS amended its petition for wardship to name J.F. as Donnell's father.
Through diligent searching the caseworker eventually found J.F., and on May 9, 2001, J.F. appeared in court in response to a summons. J.F. said he had never seen Donnell, and he did not know whether Donnell was his child. He admitted that he knew R.M. and he could possibly be Donnell's father. The court ordered him to take a paternity test. The court explained that if the test showed he was Donnell's father, DCFS would investigate him to determine whether he should have custody of Donnell.
When J.F. failed to appear for testing, the State's Attorney petitioned for a finding of contempt. The sheriff could not contact J.F. at the address and telephone number he gave the court.
At a hearing on October 23, 2001, R.M. testified that she believed J.F. was Donnell's father, but she did not know where J.F. lived. A paternity test proved that K.G. was not Donnell's father. The State's Attorney asked for a default finding that J.F. was Donnell's father. The office of the Cook County public guardian (Guardian), appointed to protect Donnell's interests, objected. The court entered a finding of paternity against J.F., using the remedy available under the Parentage Act. 750 ILCS 45/11(a) (West 2000).
The Guardian moved for reconsideration of the paternity finding. The Guardian argued that no party had filed a proper petition under the Parentage Act and, therefore the court lacked authority to enter the paternity determination. The Guardian added that the finding would not serve Donnell's interests, as it would foreclose Donnell from seeking a different adjudication of paternity if evidence should come to light showing that a man other than J.F. was his father. The State's Attorney agreed with the Guardian about Donnell's interests and joined in the request to vacate the finding of paternity.
The court found that the petition for adjudication of wardship met the statutory requirement of a petition alleging paternity. The court then asked whether the Guardian sought a body attachment of J.F. so that the court could obtain the tissue samples necessary for a paternity test. The attorney said that the court should either issue such an attachment or find the evidence insufficient for a determination of paternity.
The court noted that the State's Attorney had not succeeded in serving J.F. with summons for the contempt proceedings. The judge said:
The court denied the motion for reconsideration. The Guardian appeals, and appellee, the State, joins in the request for reversal of the trial court's judgment.
In re CP.
Y.D. gave birth to CP. on February 7, 1996. On July 23, 2001, DCFS petitioned for adjudication of wardship pursuant to section 2-3 of the Juvenile Court Act (705 ILCS 405/2-3 (West 2000)). DCFS alleged that six of Y.D.'s children tested positive for illegal substances at birth, and Y.D. admitted to using illegal substances again while pregnant in 2001. The petition identified C.P.'s father as Leslie P. of unknown address.
In July 2001 Y.D. testified that Leslie P. was C.P.'s father. She named the street where Leslie lived. The court granted temporary custody of CP. to the guardianship administrator for DCFS.
At a hearing in November 2001, Letaoine P. testified that he did not know whether he was C.P.'s biological father. The court ordered Letaoine to take a paternity test. Nothing in the record on appeal explains the court's treatment of Letaoine P. as though he were the same as Leslie P., but the court so treated him throughout the proceedings. The caseworker named the putative fathers of Y.D.'s other children and explained efforts made to contact those persons. No one appeared for testing to determine the paternity of CP. Based on the refusal to submit to parentage testing the court named Leslie P. the father of CP. The Guardian objected that the findings did not serve C.P.'s interests. The court asked whether the Parentage Act required such a finding. The Guardian responded that the evidence did not clearly and convincingly demonstrate paternity. The court held that the refusal to submit to paternity testing proved, clearly and convincingly, that Leslie P. was C.P.'s father. The Guardian appeals and appellee, the State, joins in the request for reversal of the judgment.
In re Devon M.
E.G. gave birth to Devon M. on July 9, 2001. E.G. died a week later. On July 25, 2001, DCFS took Devon into custody, and two days later DCFS petitioned for adjudication of wardship pursuant to section 2-4(1)(a) of the Juvenile Court Act (705 ILCS 406/2-4(1)(a) (West 2000)), because Devon had no parent, guardian or legal custodian. The petition, which listed Ras M. as Devon's father, alleged that Devon needed a blood transfusion.
Ras sought the aid of the public defender's office. He swore in an affidavit that he was unemployed, with neither income nor assets. He owned no car. The court appointed the public defender to represent Ras. Ras testified that he was sure he was Devon's father. But M.G., E.G.'s uncle, testified that he spoke with Ras at E.G.'s funeral, and Ras then told M.G. he thought the baby was not his. The court ordered Ras to submit to a paternity test.
Although Ras did not object to the order for paternity testing, he never appeared for the test. The Guardian moved to strike Ras's name from the petition for adjudication of wardship. The court found that Ras's testimony in court, and his refusal to submit to the test, proved clearly and convincingly that he was Devon's father. The Guardian appeals and the State joins in the request for reversal of the judgment. Ras submitted a brief on appeal asking this court to affirm the trial court's judgment naming him as Devon's father.
The Guardian contends that Supreme Court Rules 301 and 303 give this court jurisdiction to consider these appeals. 155 Ill.2d Rs 301, 303. Those rules allow appeals only from judgments that terminate the litigation between all parties on the merits, or dispose of the rights of all parties in the entire controversy. Peter Fischer Import Motors, Inc. v. Buckley, 121 Ill.App.3d 906, 909, 77 Ill.Dec. 290, 460 N.E.2d 346 (1984). In all three of these cases the Department sued for an adjudication of wardship. The records in the three cases show no final dispositions of those petitions. Without such final dispositions Rules 301 and 303 cannot confer jurisdiction on this court.
Instead we find that Rule 304(b)(...
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