Phommaleuth v. Hernandez (In re Visitation of J.T.H.)
| Decision Date | 28 September 2015 |
| Docket Number | No. 1–14–2384.,1–14–2384. |
| Citation | 42 N.E.3d 433 |
| Parties | In re the VISITATION OF J.T.H., a Minor (Jenny Phommaleuth, Plaintiff–Appellant, v. Julia Hernandez, Defendant–Appellee). |
| Court | United States Appellate Court of Illinois |
Goldberg Law Group, Chicago (Michael K. Goldberg and Elizabeth Stubbins, of counsel), for appellant.
Robert A. Chapski, Ltd., Elgin (Christopher M. Doyen, of counsel), for appellee.
delivered the judgment of the court, with opinion.
¶ 1 This appeal arises from the July 1, 2014 order entered by the circuit court of Cook County, which dismissed an action seeking visitation with a minor that was filed by plaintiff Jenny Phommaleuth (Jenny) against defendant Julia Hernandez (Julia). On appeal, Jenny argues that the trial court erred in granting Julia's motion to dismiss the action. For the following reasons, we affirm the judgment of the circuit court of Cook County.
¶ 3 From 2002 to 2006, and again from 2006 to 2009, Jenny and Julia were in a romantic relationship with each other. In 2006, the parties broke up for a period of approximately six months, during which Julia became pregnant with the minor child in the case at bar, J.T.H. The parties reconciled their relationship prior to J.T.H.'s birth in 2007. Julia is the biological mother of J.T.H. Jenny was present for J.T.H.'s birth and for surgery performed on him in 2007, helped select a name for the child, attended prenatal doctor visits with Julia, and resided with J.T.H. in the parties' shared home. According to Jenny's allegations in her complaint, Jenny paid for half of J.T.H.'s expenses, traveled with Julia and J.T.H., was present for many milestones, and the parties publicly held themselves out to be a family.
¶ 4 In 2009, the parties' romantic relationship dissolved and Jenny moved out of the shared home, while J.T.H. continued to reside in the home with Julia. Following the parties' break up in 2009, Jenny continued to visit with J.T.H., including picking him up from daycare and caring for him a few hours daily, spending every other weekend with him, and spending some holidays together. The parties also continued to participate in activities together, such as going to the beach and attending dinners and parties with family and friends.
¶ 5 In 2011, the parties agreed to not participate in so many activities together with J.T.H., but to continue the every other weekend visits between Jenny and J.T.H., as well as the daycare pickups. According to Jenny, the parties “began to create calendars to keep track of the days that each party would be caring for the minor child, which included holidays and special events.” The parties also allegedly continued to equally split the costs and expenses in caring for J.T.H., including fees related to his education and summer camps. According to Jenny, for a period of seven years since his birth in 2007, J.T.H. has had a parent-child relationship with her.
¶ 6 Prior to the summer of 2013, the parties discussed guardianship or adoption of J.T.H. by Jenny, looked into the possibility of adoption, and agreed to adoption when the parties had secured sufficient funds to pay for costs associated with the adoption process. According to Jenny, the parties continued to jointly care for J.T.H. until January 2014.
¶ 7 On January 10, 2014, Julia informed Jenny that she no longer wanted Jenny to have contact with J.T.H. Jenny has not seen or spoken to J.T.H. since that date.
¶ 8 On January 30, 2014, Jenny filed an action against Julia, seeking visitation with J.T.H. In the “petition for visitation,” Jenny alleged that based on her intent to adopt J.T.H. and her parent-child relationship with him, she has standing to seek visitation with the child under the equitable adoption doctrine.
¶ 9 On March 4, 2014, Julia filed a section 2–615
motion to dismiss the petition for visitation, on the basis that Jenny lacked standing to petition the court for visitation with J.T.H. On March 28, 2014, Jenny filed a response to the motion to dismiss.
¶ 10 On June 10, 2014, a hearing on Julia's motion to dismiss was held. On July 1, 2014, the circuit court issued an order dismissing Jenny's petition for visitation, finding that she lacked standing to petition for visitation with J.T.H. because the equitable adoption doctrine was inapplicable in the context of statutory child custody proceedings.
¶ 11 On July 24, 2014, Jenny filed a timely notice of appeal. Accordingly, we have jurisdiction over this appeal pursuant to Supreme Court Rules 301
and 303. See Ill. S.Ct. R. 301 (eff. Feb. 1, 1994); R. 303 ( ).
¶ 13 The sole inquiry before us on appeal is whether the circuit court erred in granting Julia's motion to dismiss Jenny's petition for visitation, which we review de novo. See Duffy v. Orlan Brook Condominium Owners' Ass'n, 2012 IL App (1st) 113577, ¶ 14, 367 Ill.Dec. 341, 981 N.E.2d 1069
. Generally, the question of standing is also reviewed de novo . In re Guardianship of K.R.J., 405 Ill.App.3d 527, 535, 347 Ill.Dec. 395, 942 N.E.2d 598 (2010).
¶ 14 As a preliminary matter, we note that on November 26, 2014, Julia filed before this court a motion to strike portions of Jenny's reply brief, which this court ruled would be addressed in conjunction with the disposition of this case. In that motion, Julia specifically argued that the second paragraph of Jenny's reply brief willfully misrepresented a legal conclusion by asserting that our supreme court had “indicated that [the] equitable adoption [doctrine] should be applied to appropriate visitation cases and that the visitation cases should be considered in the equitable adoption test from DeHart. ” While we decline to strike this portion of the reply brief, we will instead disregard any purported points of law that are inconsistent with relevant Illinois legal authority.
¶ 15 Turning to the merits of the appeal, we determine whether the circuit court erred in dismissing Jenny's petition for visitation of J.T.H., on the basis that she lacked standing because the equitable adoption doctrine was inapplicable to statutory child custody proceedings.
¶ 16 Jenny argues on appeal that she has standing to seek visitation with J.T.H. under the equitable adoption doctrine. Relying on DeHart v. DeHart, 2013 IL 114137, 369 Ill.Dec. 136, 986 N.E.2d 85
and In re Parentage of Scarlett Z.–D., 2014 IL App (2d) 120266–B, 381 Ill.Dec. 729, 11 N.E.3d 360, she argues that the equitable adoption doctrine applies to visitation cases, noting that she has alleged sufficient facts to show her intention to adopt J.T.H. and that she had acted consistently with that intent by forming a close and enduring familial relationship with the child.
¶ 17 Julia responds that the circuit court's dismissal of Jenny's petition for visitation was proper, arguing that Jenny does not have standing to seek visitation with J.T.H. because the equitable adoption doctrine is inapplicable to visitation proceedings.
motion to dismiss challenges the legal sufficiency of the complaint based on defects apparent on its face. 735 ILCS 5/2–615 (West 2012). “In reviewing a section 2–615 dismissal motion, the relevant question is whether, taking all well-pleaded facts as true, the allegations in the complaint, construed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief may be granted.” Duffy, 2012 IL App (1st) 113577, ¶ 14, 367 Ill.Dec. 341, 981 N.E.2d 1069. A section 2–615 motion to dismiss is granted where “no set of facts can be proved entitling the plaintiff to recovery.” Id. However, a plaintiff “may not rely on factual or legal conclusions that are not supported by factual allegations.” Id. Because Illinois is a fact-pleading jurisdiction, a plaintiff must allege facts sufficient to bring his or her claim within the scope of the cause of action asserted. Turner v. Memorial Medical Center, 233 Ill.2d 494, 499, 331 Ill.Dec. 548, 911 N.E.2d 369 (2009). We may affirm the circuit court's decision on any basis supported by the record. In re Huron Consulting Group, Inc., 2012 IL App (1st) 103519, ¶ 33, 361 Ill.Dec. 545, 971 N.E.2d 1067
.
¶ 19 Under section 607 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/607 (West 2012)
), grandparents, great-grandparents, siblings, or stepparents of a minor child have standing to seek visitation with the child by filing a petition with the circuit court. Jenny is not a grandparent, great-grandparent, sibling, or stepparent of J.T.H. Jenny also does not, and cannot, argue that she is either the child's biological mother or legally adoptive parent. Rather, she argues that she has standing to petition for visitation of J.T.H. by virtue of the equitable adoption doctrine. The equitable adoption doctrine “allows a person who was accepted and treated as a natural or adopted child, and as to whom adoption typically was promised or contemplated but never performed, to share in the inheritance of the foster or stepparent.” (Emphasis added.) In re Parentage of Scarlett Z.–D., 2015 IL 117904, ¶ 48, 390 Ill.Dec. 123, 28 N.E.3d 776.
¶ 20 DeHart was a model case for equitable adoption. That case involved an action against the executor of an estate to contest the decedent's will. The plaintiff, James DeHart, born in 1944, was held out to be the son of the decedent, Donald DeHart, for James' entire life. Donald married James' birth mother when James was about two years old. She and Donald agreed that he would adopt James. This agreement was kept secret for the good of the family. Donald hired an attorney, received a purported birth certificate that named him as James' father, and believed that the adoption had been formalized and was legal. Throughout their lifetimes, both Donald and James used the purported birth certificate to conduct the affairs of life. However, in 2000, during the process of applying for a passport, James, then 56 years old, obtained his...
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Sharpe v. Westmoreland
...Z.-D. , 2015 IL 117904, ¶ 68, 390 Ill.Dec. 123, 28 N.E.3d 776 ; In re Visitation of J.T.H. , 2015 IL App (1st) 142384, ¶ 28, 397 Ill.Dec. 518, 42 N.E.3d 433. The underlying principles guiding these decisions dictate that nonparent standing requirements be strictly construed. Accordingly, we......