People v. Robert M.

FIRST DIVISION
May 21, 2010

No. 1-09-3468

In re M.M., a Minor, )
) Appeal from the
Respondent-Appellee ) Circuit Court of
) Cook County
(The People of the State of Illinois, )
)
Petitioner-Appellee, ) No. 09 JA 604
)
v. )
) The Honorable
Robert M., ) Helaine L. Berger,
) Judge Presiding.
Respondent-Appellant). )

JUSTICE LAMPKIN delivered the opinion of the court:

Respondent, Robert M., appeals the trial court’s order

entering a finding of nonpaternity of the minor, M.M., pursuant

to deoxyribonucleic acid (DNA) testing. Robert M. contends the

trial court’s finding was erroneous where he and the minor’s

mother, Shante M., executed a voluntary acknowledgment of

paternity (VAP) and he signed the minor’s birth certificate as

the father. Based on the following, we affirm.

FACTS

M.M. was born to Shante M. on February 8, 2009. At all

relevant times, Shante M. has been a ward of the court herself

and will remain as such until her twenty-first birthday on July

16, 2010.
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The case began when the Department of Children and Family

Services (DCFS) received a hotline call alleging M.M. was at risk

of harm and sexual abuse based on an incident of domestic

violence between Shante M. and Robert M., a registered sex

offender living with Shante M., that occurred while M.M. was

present. Timothy Otunde, a division of child protection

investigator, was assigned to investigate the allegation. Based

on Otunde’s investigation, M.M. was taken into custody on July

27, 2009. On July 28, 2009, the State filed a petition for the

adjudication of wardship of M.M.1 based on allegations that the

minor was abused or neglected pursuant to section 2-3(2)(ii) of

the Juvenile Court Act of 1987 (Juvenile Act) (705 ILCS 405/2-

3(2)(ii) (West 2008)). A temporary custody hearing was held on

that date.

Preliminary testimony and admonishments were made. Shante

M. testified that Robert M. is M.M.’s biological father and that

his name appears on the minor’s birth certificate. Robert M.

also testified that he is the biological father of M.M.; however,

he requested a paternity test. The trial court granted the

request over the State’s objection. The parties initially

1
The petition was also filed for the adjudication of

wardship of Shante M.’s older child, M.W. M.W.’s case is not

relevant to the instant appeal.

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expressed their intention to proceed by way of stipulation, but

both Shante M. and Robert M. requested a full hearing.

Otunde testified that he began his investigation in late May

2009. He learned that Shante M., Robert M., and M.M. lived

together and that Robert M. was a registered sex offender, had a

DCFS indicated sexual abuse report2, and was convicted of

sexually abusing a three-year-old. The initial name and address

given for Shante M. were incorrect and Otunde did not learn her

correct name and address until July 7. Otunde discovered Shante

M. was a DCFS ward and contacted Shante M.’s caseworker, Patricia

Brown. Brown said Shante M. had not been cooperating with the

offered UCAN services, which is a teen parenting program. Brown

added that Shante M. was living in an unapproved self-selected

placement. Later, Brown informed Otunde that Shante M. had been

offered parenting classes and counseling, but she refused both.

Shante M., however, did complete her GED and began beauty school.

Otunde went to Shante M. and Robert M.’s apartment several

times in an attempt to speak with them. On his first attempt, a

neighbor told Otunde that the couple lived in the basement, but

Robert M. had been arrested and was in jail. Otunde later

2
According to Otunde, “indicated” is a DCFS term meaning

that an investigation has shown the person committed the alleged

act.

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learned Robert M. had been arrested for domestic battery and was

in jail for approximately one week. Shante M. was the victim of

the domestic battery charge. She allegedly suffered burn

injuries and was taken to the University of Chicago hospital.

The case, however, was dismissed. Otunde also discovered a

second domestic battery arrest that was never prosecuted. Otunde

left notes at the apartment with his contact information. On

July 15, Robert M. called Otunde. Otunde and Robert M. arranged

a meeting with the family the following day at their apartment.

When Otunde arrived at the designated time, no one answered the

door. Robert M. called Otunde on July 17 to arrange another

meeting.

Otunde finally met with Shante M. at the apartment during

the morning of July 21, 2009. Robert M. was not present;

however, he and Shante M. spoke on the telephone several times

while Otunde was there. Otunde informed Shante M. that he was

investigating an allegation of possible abuse and neglect.

Shante M. told Otunde she knew Robert M. was a registered sex

offender; however, she said Robert M. had never harmed M.M.

Shante M. told Otunde that she and Robert M. had been together

for three years. Shante M. admitted she and Robert M. argue, but

denied that they had physical altercations. Otunde informed

Shante M. that, due to Robert M.’s background, either she and the

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children had to move out of the home, Robert M. had to move out,

or the children had to move out. Otunde told Shante M. that she

could enter the Safe Family Program, but she refused. She later

agreed to place M.M. in the program.

Otunde testified that he met with Robert M. at the apartment

later in the evening on July 21, 2009. Otunde explained that,

due to Robert M.’s registered offender status, indicated DCFS

report, and conviction, he was not supposed to be around

children. Otunde added that the only way Robert M. could be

around children was if he entered treatment and a therapist

provided safety clearance on his behalf. Robert M. responded

that he did not believe any therapist would be willing to provide

the requisite clearance even though he had been out of jail for

many years and had not reoffended. Robert M. said he had

received treatment from Doctor Harris at an agency called Emages.

Otunde called Dr. Harris on July 21, 2009. Dr. Harris said

Robert M. was in treatment “a few years back.” Robert M. did not

complete the treatment; instead, once he was released from

parole, he no longer attended treatment. Dr. Harris could not

give a recommendation as to Robert M.’s ability to reoffend.

According to Otunde, Shante M. did place M.M. in the Safe

Family Program on July 22 or 23. Otunde testified, however, that

he took M.M. into protective custody on July 27 because the Safe

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Family Program was only a two-month solution, at best, and Shante

M. could remove the minor at any time.

Shante M. testified that she elected to enroll at UCAN at

the end of August 2008 when she had one child and was pregnant

with M.M. Shante M. said she left UCAN around May 15, 2009, and

moved back in with Robert M. Shante M. disputed telling Otunde

that she lived with Robert M. for three years. However, she said

she occasionally left UCAN during the period of August 2008 and

May 2009 to stay with Robert M. Shante M. added that she stayed

with Robert M. from “time to time” before she entered UCAN.

Shante M. admitted she was supposed to attend parenting training

and classes at UCAN. She said class enrollment was full while

she was there. Shante M. said she attended therapy while at

UCAN, but ceased attending when she left the facility.

Shante M. testified that she knew Robert M. had been

convicted of sexual abuse and was a registered sex offender. She

was aware that the victim was a minor, but denied knowing the

victim was three years old. Shante M. said she never left M.M.

alone with Robert M.

Shante M. admitted she was the complaining witness for

Robert M.’s domestic battery charge on June 28, 2009; however,

she chose to drop the charges. Shante M. said the incident was

“actually an accident” in that Robert M. tripped over her curling

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iron and she was burned on her arm as a result. Shante M.

testified that M.M. was not present during the incident. Shante

M. admitted the couple had a prior domestic battery incident in

which she was arrested and Robert M. was the complaining witness.

Shante M. further admitted that she was indicated for lack

of supervision of M.M. in March 2009; however, she said the case

was “unfounded.” Shante M. also was indicated for risk of harm

to her older child in 2008.

Shante M. testified that she was familiar with and fond of

the Safe Family Program, which she had used on prior occasions.

Specifically, prior to giving birth to M.M., Shante M. placed her

older child in the program from approximately January to March

2009. Shante M. then placed M.M. in the program around May 31,

2009, for approximately four to five weeks when Shante M. began

beauty school. At the time, she did not have M.M.’s birth

certificate or social security number and therefore could not

place M.M. in daycare. According to Shante M., she never placed

M.M. in the Safe Family Program due to concern about Robert M.

After her meeting with Otunde, Shante M. agreed to enroll her

children in the Safe Family Program with the understanding that

they would remain for two or three months while she moved out of

the apartment and got settled.

Robert M. testified that he was convicted of the sex offense

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16 years ago when he was 18 years old. He admitted the victim

was three years old. Robert M. served almost 9 years of an 18-

year prison term. He was released in early 2002. Robert M. said

he was on parole for two years. One condition of his parole was

to attend sex offender therapy, which he did “off and on” for two

years with Dr. Harris at the Emages agency. According to Robert

M., he attended therapy “off and on” because he had to pay for

the sessions and did not have the money to do so on some

occasions. When he completed his parole, Robert M. ceased

attending therapy because he believed that he was “cleared.” He

has never had a court order entered barring him from seeing M.M.

The trial court found probable cause and an urgent and

immediate necessity to remove M.M. to temporary custody.

On September 14, 2009, the paternity test results were read

in open court. The results showed a “combined paternity of zero

that [Robert M.] is the father of [M.M.].” The State informed

the court that it was not seeking a finding of nonpaternity

because the State wanted to obtain a certified copy of M.M.’s

birth certificate and the VAP to determine whether Robert M.

remained the legal father.

On September 29, 2009, the State informed the trial court

that it intended to seek a finding of paternity. Robert M. also

requested a finding of paternity. The trial court ordered the

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State to file a motion and brief in support of its request. The

State complied.

On October 8, 2009, M.M.’s guardian ad litem (GAL) requested

leave to file a consolidated complaint for a declaration of

nonpaternity with the pending petition for adjudication of M.M’s

wardship. On November 5, 2009, the court entertained arguments

on the GAL’s request and granted leave, finding M.M. had standing

to bring the complaint. The GAL filed a verified complaint to

declare the nonexistence of the parent-child relationship

pursuant to section 7(b) of the Illinois Parentage Act of 1984

(Parentage Act) (750 ILCS 45/7(b) (West 2008)). The court

construed Robert M.’s responsive motion as a motion to dismiss,

which was denied. The State subsequently withdrew its motion for

declaration of paternity.

On November 19, 2009, following arguments, the trial court

entered a finding of nonpaternity. The trial court said:

“The Court agrees with [the GAL] that because the

child was not in privity with the finding, the child

has a right to contest the voluntary acknowledgment,

and it does not operate as a judgment against the

child.

***

The Court believes that the minor has an absolute

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right to proceed in this case, as well as in that the

DNA test therefore controls, and that the voluntary

acknowledgment does not bind the minor.”

DECISION

At issue is whether a minor may successfully challenge the

paternity of a man who signed a VAP and birth certificate, but

was later found not to be the biological father based on DNA

testing results.

This issue is a matter of statutory construction, which we

review de novo. People ex rel. Department of Public Aid v.

Smith, 212 Ill. 2d 389, 396-97, 818 N.E.2d 1204 (2004). The

primary goal of statutory interpretation is to construe the

statute in order to ascertain and give effect to the

legislature’s intent. Smith, 212 Ill. 2d at 397. The best

indicator of legislative intent is applying plain and ordinary

meaning to the language of the statute itself. People v. Pack,

224 Ill. 2d 144, 147, 862 N.E.2d 938 (2007).

The statute at issue provides:

“An action to declare the non-existence of the

parent and child relationship may be brought by the

child, the natural mother, or a man presumed to be the

father under subdivision (a)(1) or (a)(2) of Section 5

of this Act. Actions brought by the child, the natural

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1-09-3468

mother or a presumed father shall be brought by

verified complaint.” 750 ILCS 45/7(b) (West 2008).

Robert M. contends M.M. is estopped from bringing an action

to declare the nonexistence of their relationship under section

7(b).

The doctrine of collateral estoppel bars the relitigation of

an issue addressed by a court of competent jurisdiction in a

later action between the same parties or their privies in the

same or a different cause of action. Simcox v. Simcox, 131 Ill.

2d 491, 496, 546 N.E.2d 609 (1989). The cause of action at issue

here is Robert M.’s paternity and the establishment of a parent-

child relationship as a result of the VAP. Section 5(a)(3) of

the Parentage Act provides that a man is presumed to be the

natural father of the child if “he and the child’s natural mother

have signed an acknowledgment of paternity in accordance with

rules adopted by the Department of Healthcare and Family Services

under Section 10-17.7 of the Illinois Public Aid Code.” 750 ILCS

45/5(a)(3) (West 2008). The presumption is conclusive unless

rescinded by the earlier of two dates, neither of which was done

here. 750 ILCS 45/5(b) (West 2008). Moreover, a parent-child

relationship may be established by voluntarily signing and

witnessing a VAP (750 ILCS 45/6(a) (West 2008)) and may be

challenged in court only on the basis of fraud, duress, or

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mistake of fact (750 ILCS 45/6(d) (West 2008)), which was not

done here. “Notwithstanding any other provisions of this Act,

paternity established in accordance with subsection (a) has the

full force and effect of a judgment entered under this Act ***.”

750 ILCS 45/6(b) (West 2008).

M.M.’s GAL, however, contends that, because M.M. was not a

party or in privity with Robert M. or Shante M. in the “cause of

action,” she is not barred from challenging that judgment. We

agree. There is no dispute that M.M. was not a party to the

signing of the VAP. We also find M.M. was not in privity with

Robert M. or Shante M. when they executed the document. A line

of parentage cases hold that a minor is not in privity with his

mother in a paternity action and therefore is not barred from

bringing his own paternity action. See Department of Public Aid

ex rel. Stark v. Wheeler, 248 Ill. App. 3d 749, 751, 618 N.E.2d

1311 (1993); In re Parentage of Mayberry, 222 Ill. App. 3d 1008,

1011, 584 N.E.2d 533 (1991); Department of Public Aid ex rel.

Skelton v. Liesman, 218 Ill. App. 3d 437, 439-40, 578 N.E.2d 310

(1991); Maller v. Cohen, 176 Ill. App. 3d 987, 991, 531 N.E.2d

1029 (1988). Support for the holding is found in the differing

interests of the minor and the mother, in addition to the

differing statute of limitations for the minor and the mother to

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assert paternity actions. Liesman, 218 Ill. App. 3d at 441.

Moreover, it has been noted in dissolution proceedings that

a minor is not in privity with his mother when the minor’s

interests are not represented by a GAL. See In re Parentage of

Rodgers, 279 Ill. App. 3d 648, 654, 665 N.E.2d 36 (1996); In re

Marriage of Klebs, 196 Ill. App. 3d 472, 483, 554 N.E.2d 298

(1990); Simcox, 131 Ill. 2d at 499 (Ryan, J., specially

concurring). But see In re Parentage of Griesmeyer, 302 Ill.

App. 3d 905, 915-16, 707 N.E.2d 72 (1998) (the minor was barred

from relitigating the issue of paternity when the minor was

represented by a GAL during dissolution proceedings where

paternity was litigated). M.M. was not represented by a GAL when

Robert M. and Shante M. signed the VAP. The GAL was first

appointed to represent M.M. in this case on July 28, 2009. M.M.

was not estopped from filing her complaint.

We now turn to the statute at issue. The clear language of

the statute demonstrates that M.M., by and through her GAL, had

standing to bring the disputed action. Section 7(b) provides, in

relevant part: “[a]n action to declare the non-existence of the

parent and child relationship may be brought by the child, the

natural mother, or a man presumed to be the father under

subdivision (a)(1) or (a)(2) of Section 5 of this Act.” 750 ILCS

45/7(b) (West 2008). The statute plainly says that a child may

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bring a petition to establish nonpaternity. The statute does not

restrict the child’s ability to do so.

Robert M.’s argument to the contrary is misinformed. Robert

M. contends that M.M. could not bring the disputed action because

Robert M. is not presumed to be the father pursuant to section

5(a)(1) or (a)(2) of the Parentage Act; rather, Robert M. is

M.M.’s legal father pursuant to section 5(a)(3) as a result of

the VAP. The statutory language relied on by Robert M., however,

only modifies a father’s ability to bring an action to declare

the nonexistence of a parent-child relationship. It does not

restrict the child’s rights. An absurd result would occur if we

read the statute as suggested by Robert M. Robert M.’s

interpretation misses the mark and is in no way confirmed by the

plain language of the statute. The language of the statute does

not support Robert M.’s interpretation. When the statutory

language is clear and unambiguous, we may not resort to other

constructive aids. People v. Wooddell, 219 Ill. 2d 166, 171, 847

N.E.2d 117 (2006). Further, “we will not read exceptions,

conditions, or limitations into a statute that the legislature

did not express if the statutory language is clear and

unambiguous,” as it is here. In re Christopher K., 217 Ill. 2d

348, 364, 841 N.E.2d 945 (2005).

The cases relied upon by Robert M. are distinguishable:

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Smith involves section 7(b-5) of the Parentage Act and the

ability of a man who signed a VAP to bring an action to declare

the nonexistence of a parent-child relationship (Smith, 212 Ill.

2d at 407); and In re Parentage of G.E.M., 382 Ill. App. 3d 1102,

890 N.E.2d 944 (2008), the trial court held that a mother could

not challenge the paternity of a man with whom she signed a VAP

where neither party timely rescinded the VAP and the man did not

allege it was signed under fraud, duress, or mistake of fact.

G.E.M., 382 Ill. App. 3d at 1113.

We need not address Robert M.’s bare contention that the

trial court was prejudiced against him. Robert M. fails to

present any argument or cite to any legal authority to show that

the portion of the trial proceedings quoted at length

demonstrates the trial court was prejudiced against him such that

the proceedings were unfair. Robert M.’s contention violated

Supreme Court Rule 341(h)(7) and is therefore waived. 210 Ill.

2d R. 341(h)(7). Nevertheless, our review of the record does not

support the allegation that the trial court was prejudiced

against Robert M.

CONCLUSION

We affirm the judgment of the trial court.

Affirmed.

HALL, P.J., and PATTI, J., concur.

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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT

In re M.M., a Minor,

Respondent-Appellee

(The People of the State of Illinois,

Petitioner-Appellee,

v.

Robert M.,

Respondent-Appellant).

No. 1-09-3468

Appellate Court of Illinois
First District, FIRST DIVISION

May 21, 2010

Justice Bertina E. Lampkin authored the opinion of the court:

Presiding Justice Hall and Justice Patti concur.

Appeal from the Circuit Court of Cook County.
The Hon. Helaine L. Berger, Judge Presiding.

COUNSEL FOR RESPONDENT-APPELLANT
Steven O. Ross, Chicago, IL 60614

COUNSEL FOR MINOR-RESPONDENT-APPELLEE
Bruce H. Bornstein, Chicago, IL 60603

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