People v. Nichole G. (In re N.C.), 116532.

• Citation: 12 N.E.3d 23
• Decision Date: 19 June 2014
• Docket Number: No. 116532.,116532.
• Parties: In re N.C., a Minor (The People of the State of Illinois, Appellant, v. Nichole G., Appellee, and Department of Healthcare and Family Services, Intervenor–Appellee).
• Court: Supreme Court of Illinois

12 N.E.3d 23

In re N.C., a Minor (The People of the State of Illinois, Appellant,

v. Nichole G., Appellee, and Department of Healthcare and Family Services, Intervenor–Appellee).

No. 116532.

Supreme Court of Illinois.

June 19, 2014.

Lisa Madigan, Attorney General, of Springfield, and Jerry Brady, State's Attorney, of Peoria (Jane Elinor Notz, Deputy Solicitor General, and Timothy M. Maggio, Assistant Attorney General, of Chicago, and Patrick Delfino, Terry A. Mertel and Mark A. Austill, of the Office of the State's Attorneys Appellate Prosecutor, of Ottawa, of counsel), for the People.

Louis P. Milot, of Peoria, for appellee.

Lisa Madigan, Attorney General, of Springfield (Carolyn E. Shapiro, Solicitor General, and Diane M. Potts, Deputy Attorney General, of Chicago, of counsel), for intervenor-appellee.

Robert F. Harris, Cook County Public Guardian, of Chicago (Kass A. Plain and Christopher Williams, of counsel), amicus curiae.

Bruce A. Boyer, of Chicago, for amicus curiae Civitas ChildLaw Clinic.

Chlece Neal, Miriam Hallbauer and Richard T. Cozzola, of Chicago, for amicus curiae LAF.

OPINION

Justice KILBRIDE

delivered the judgment of the court, with opinion.

¶ 1 This appeal asks whether the State has standing in a juvenile neglect proceeding (705 ILCS 405/1–1 et seq.

(West 2012)) to challenge the paternity of a man, Alfred C., who signed a voluntary acknowledgement of paternity under the Illinois Parentage Act of 1984 (750 ILCS 45/1 et seq. (West 2012)). Four days after the birth of the minor, N.C., the State filed a juvenile neglect petition seeking to have N.C. adjudicated neglected and made a ward of the court. On the State's motion, the circuit court of Peoria County dismissed Alfred from the neglect proceedings, based on DNA evidence establishing that he was not N.C.'s biological father.

¶ 2 Following adjudicatory and dispositional hearings, the circuit court found that N.C. was neglected and the respondent mother, Nichole G., was unfit, made N.C. a ward of the court, and named the Department of Children and Family Services as N.C.'s guardian. A majority of the appellate court reversed, concluding that the State did not have standing to challenge Alfred's paternity in the neglect proceedings and, even if it had standing, the State did not comply with the applicable statutory provisions. The appellate court remanded the matter to the circuit court for new neglect proceedings that would include Alfred. For the reasons that follow, we affirm the appellate court's judgment, and remand with directions.

¶ 3 I. BACKGROUND

¶ 4 Respondent, Nichole G., gave birth to N.C. on February 17, 2012, at Proctor Hospital in Peoria, Illinois. Nichole was not married at the time. The following day, February 18, 2012, Nichole and her boyfriend, Alfred C., executed a voluntary acknowledgement of paternity of N.C., referred to by the parties and the lower courts in this case as a VAP.

¶ 5 The VAP advised Alfred that it constituted a legal document that operated “the same as a court order determining the legal relationship between a father and child.” The VAP expressly imposed a legal responsibility on Alfred to provide financial support for N.C. until the age of 18 years, including child support and medical support. The VAP did not grant Alfred a right to custody or visitation, but it did provide him the right to seek custody or visitation from the court. Alfred was also entitled to all notices of adoption proceedings. Both Nichole and Alfred had the right to rescind the VAP by signing a “Rescission of VAP” form within 60 days of the earlier of the acknowledgement's execution or a proceeding relating to the child. The VAP also explicitly waived Alfred's right to genetic testing.

¶ 6 On February 21, 2012, four days after Nichole gave birth to N.C. and three days after Nichole and Alfred executed the VAP, the Department of Children and Family Services (DCFS) took N.C. into protective custody. On February 22, 2012, DCFS filed a petition in the circuit court of Peoria County alleging juvenile neglect under section 2–13 of the Juvenile Court Act of 1987 (705 ILCS 405/2–13 (West 2012)

). The petition identified Nichole as N.C.'s mother and Alfred as N.C.'s father. The petition contained separate allegations against Nichole and Alfred to support the charges.

¶ 7 Specifically, the petition alleged that Nichole: (1) had been adjudicated an unfit parent in previous proceedings for her other three children; (2) had not subsequently been found to be a fit parent; (3) had two paramours who committed physical acts of violence against Nichole or her children; and (4) had a criminal history of retail theft in 2010. The petition alleged that Alfred (1) was bipolar and was not taking his medication; (2) had anger management issues; (3) was homeless after being “kicked out” of his sister's house; and (4) had an extensive criminal history. Alfred's criminal history included resisting police officers in 2011; harassing a witness, unlawful restraint, and resisting arrest in 2006; threatening a public official in 2004; aggravated battery and possession of an explosive or incendiary device in 2000; battery, criminal damage to property, and disorderly conduct in 1998; battery and resisting a police officer in 1994; battery in 1991; and reckless conduct in 1984.

¶ 8 On February 23, 2012, the circuit court entered an order for temporary shelter care, placed N.C. in the custody of DCFS, and appointed a guardian ad litem (GAL) to represent N.C's interests. The court also entered an order identifying Alfred as the “legal” father based on the VAP and appointed separate counsel for Nichole and Alfred.

¶ 9 On February 28, 2012, Nichole and Alfred filed answers to the State's neglect petition. Both stipulated that the State would call witnesses at the adjudicatory hearing who would support all of the allegations against Alfred.

¶ 10 Also on February 28, 2012, the State made an oral request for genetic testing on Alfred “due to the VAP.” None of the parties objected to this motion. The court granted the State's request and ordered the parties to cooperate. The court also ordered DCFS to schedule and pay for the testing.

¶ 11 On March 6, 2012, Nichole and Alfred got married. The next day, March 7, 2012, Nichole and Alfred participated in a DCFS Integrated Assessment Interview conducted by two caseworkers from Family Core. Based on the interview statements made by Nichole and Alfred, the caseworkers created a report summarizing the background of N. C.'s case and the personal history of Alfred and Nichole.

¶ 12 In pertinent part, the report noted that Alfred signed the VAP stating he was N.C.'s father, but the report claimed that Nichole “questioned paternity.” Alfred and Nichole gave slightly conflicting accounts of their relationship, but both stated that they initially met at the Peoria bus station in either 2009 or 2010. They dated briefly, until Alfred moved to southern Illinois.

¶ 13 Alfred told the screeners that he returned to Peoria in December 2011, when he and Nichole started dating again. Nichole, however, told screeners that Alfred returned to Peoria in May 2011, and they resumed their relationship. Nichole stated that she first had sexual relations with Alfred in May 2011. Nichole further explained that she also “dated” another man, Joseph R., from May 2011 until December 2011.

¶ 14 Alfred told the screeners that he was “very confident” that N.C. was his child. Nichole, however, told the screeners that she “tried” to explain to Alfred that he is likely not N.C.'s father. Nichole suggested that N.C.'s biological father was her former boyfriend, Joseph R. Nichole explained that she was dating Joseph R. when she became pregnant with N.C.

¶ 15 In the final section of Alfred's interview, the screeners concluded that it is “highly likely” that Alfred was not N.C.'s biological father. The screeners further concluded that Alfred's “active, untreated mental health symptoms, combined with his lifestyle, significant criminal history, and suspected domestic violence are also concerns when considering any role he may play in providing care to [N.C.], either as her determined father or as [Nichole's] husband.”

¶ 16 On March 16, 2012, LabCorp, a genetic testing company, took samples from Alfred and N.C. for DNA analysis consistent with the trial court's prior order for genetic testing. On April 1, 2012, LabCorp issued a report concluding that Alfred was not the biological father of N.C., calculating the probability of Alfred's paternity at 0.00%.

¶ 17 On April 3, 2012, the State filed a “motion for declaration of nonpaternity,” citing LabCorp's report finding that Alfred was not N.C.'s biological father. The State sought a declaration that Alfred “is not the legal father of [N.C.],” and asked that Alfred “be removed as a party” from the neglect proceeding. The State did not cite any specific statutory provision in its motion. Neither Alfred nor Nichole filed an objection to the State's motion.

¶ 18 At a hearing on April 30, 2012, the trial court heard arguments on both the State's motion for declaration of nonpaternity and the State's petition alleging juvenile neglect. The State, the GAL, and separate counsel for Alfred and Nichole appeared at the hearing.

¶ 19 The court first considered the State's motion for declaration of nonpaternity. The parties stipulated that Nichole and Alfred had executed a VAP. Over Nichole's objection, the State presented the unsworn testimony of the Family Core caseworker, who stated that Nichole told her that she and Alfred's relationship began in December 2011. According to the caseworker, Alfred initially claimed the relationship started in December 2011. When Alfred was reminded that N.C. was born in February 2012, he stated that he and Nichole were intimate in either May or June of 2011.

¶ 20 During arguments, the State conceded that it could not bring an action for nonexistence of a parent and child relationship under section 7 of the Parentage Act (...