dissenting:
The majority has given careful thought to this case, as did the trial court. I respectfully take a different view based on the language of the Act and the important policy considerations involved. The majority holds that Randy should have been allowed to participate (but was not prejudiced here by nonparticipation). I would go further and require the State to prove Randy unfit, as would be required if he were a biological father.
The importance of the familial relationship, both to the individuals involved and to society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role the relationship plays in promoting a way of life through the instruction of children — as well as from the fact of blood relationship. (Smith v. Organization of Foster Families for Equality & Reform (1977), 431 U.S. 816, 844, 53 L. Ed. 2d 14, 35, 97 S. Ct. 2094, 2109.) Disruption of the continuity of relationship between the child and his “psychological parents” is almost certain to adversely affect the child’s development. (Rodriguez v. Koschny (1978), 57 Ill. App. 3d 355, 362, 373 N.E.2d 47, 52.) Assume a situation, along the lines of the majority’s hypothetical, where one individual is the biological father of a 15-year-old child, but a second individual believes himself to be, and is believed by the child to be, the biological father. The second individual does everything that parents do for children. The first individual does not even know the child exists. Which of these is the child’s “parent”?
The answer is found in the Act.
“ ‘Parent’ means the father or mother of a child and includes any adoptive parent. It also includes the father whose paternity is presumed or has been established under the law of this or another jurisdiction.” (Ill. Rev. Stat. 1987, ch. 37, par. 801-3(13).)
The Act by definition establishes that respondent is a “parent,” and he should be treated as one. I see nothing in the Act which allows the State to rebut the presumption of paternity, or attack a judgment establishing paternity, just because one of those options would be easier than establishing unfitness. Because of the likelihood that a presumed parent will have the same bond with the child as would a biological parent, the State should be required to prove unfitness, not nonpaternity, before it terminates parental rights. The majority opinion reads the presumed parent out of the Act’s definition. Perhaps all termination of parental rights cases will now begin with a blood test.
The situation presented by this case is a narrow one, one not presented in most cases involving stepfathers or foster fathers. Stepparents apparently have no right to be proved unfit. (In re Adoption of Weller (1977), 47 Ill. App. 3d 492, 362 N.E.2d 73 (construing the Adoption Act (Ill. Rev. Stat. 1975, ch. 4, par. 9.1 — 1 et seq.)).) Foster parents, no matter how close their relationship with the child, need not be proved unfit. Foster parents have the right to be heard in a proceeding under the Act, but are not parties. Ill. Rev. Stat. 1987, ch. 37, par. 801 — 5; see Johnson v. Burnett (1989), 182 Ill. App. 3d 574, 582, 538 N.E.2d 892, 897 (there can be no expectation that foster placement will continue to exist).
An apparent father, such as Randy, is more like a biological father, or an adoptive father, than like a stepfather or foster father. In the absence of statute, a stepfather has no obligation to support the child, except perhaps where the stepchild believed the stepfather was his father and the stepfather encouraged that belief. An apparent father, such as Randy, will by the nature of things be required to pay child support until he suspects he is not the father; and even then, he will be required to pay child support if he does not legally contest paternity within two years. (In re Marriage of Beckett (1990), 195 Ill. App. 3d 424, 428, 552 N.E.2d 375, 378.) A stepparent who seeks to maintain the parent-child relationship can be faulted for not adopting the child, at least where adoption was possible. Randy cannot be faulted for failure to adopt A.K. because he never had reason to suspect that such a procedure was necessary.
The majority opinion suggests that to adopt the “equitable parent” concept “would make inroads upon the stated public policy that the ‘superior right[s] of *** natural parentfs] [are] recognized *** in our statutory law,’ ” quoting Peterson. (250 Ill. App. 3d at 986.) Peterson involved a dispute between a father and maternal grandparents and cannot be read to express a preference for a biological father who had never seen the child, over an individual who thought he was the father and actually raised the child. The majority opinion does not secure rights to biological fathers. It only takes rights away from apparent fathers.
Biological relationships are not the exclusive determination of the existence of a “family” for purposes of the due process clause. (Smith, 431 U.S. at 843, 53 L. Ed. 2d at 34, 97 S. Ct. at 2109.) “The scope of these rights extends beyond natural parents. The ‘parent’ in Prince itself, for example, was the child’s aunt and legal custodian.” (Smith, 431 U.S. at 843 n.49, 53 L. Ed. 2d at 34 n.49, 97 S. Ct. at 2109 n.49, citing Prince v. Massachusetts (1944), 321 U.S. 158, 159, 166, 88 L. Ed. 645, 649, 652, 64 S. Ct. 438, 439, 442 (“It is cardinal with us that the custody, care and nurture of the child reside first in the parents”).) Where a child has been placed with a man as an infant, has never known his natural father, and has remained continuously for several years in the care of the same man, it is natural that the man should hold the same place in the emotional life of the child, and fulfill the same socializing functions, as a natural father. (See Smith, 431 U.S. at 844, 53 L. Ed. 2d at 35, 97 S. Ct. at 2110 (speaking of foster parents).) This is even more true when both the child and the man believe that the man is the biological father. When it is known that the man is not the biological father, at least the man and the child can attempt to control their relationship.
The State argues that previous cases have limited the term “parent” to mean a biological parent, and excluded the husband of the natural mother. The cases cited, however, were decided under the Adoption Act, and the husbands there at all times knew they were not biological fathers. (In re Adoption of McFadyen (1982), 108 Ill. App. 3d 329, 438 N.E.2d 1362; Weller, 47 Ill. App. 3d 492, 362 N.E.2d 73.) The statute has changed significantly since these two cases were decided. The language that the definition of “parent” includes “the father whose paternity is presumed or has been established under the law of this or another jurisdiction” (new material indicated by italics) was not added to the Act until 1985. Pub. Act 83-1372, §24, eff. July 1, 1985 (1984 Ill. Laws 2627, 2643).
The State argues we should look to the definition of “parent” in the Adoption Act (both McFadyen and Weller were decided under the Adoption Act), not the definition found in the Act. The Adoption Act defines “parent” as “the father or mother of a legitimate or illegitimate child.” (Ill. Rev. Stat. 1987, ch. 40, par. 1501(E).) The question may be asked why different rules should apply under the Act and the Adoption Act. (See Johnson, 182 Ill. App. 3d at 581, 538 N.E.2d at 897 (foster parent entitled to notice under Act but not under Adoption Act).) We need not attempt to answer that question here. The present case is clearly one brought under the Act, the Act appropriately resolves this issue, and the Act’s definition of “parent” should be applied. Even were we to apply the Adoption Act definition (that a “parent” is a “father”), the dictionary definition of “father” includes “one related to another in a way suggesting that of father to child.” (Webster’s New Collegiate Dictionary 418 (1976).) The word “father” is one of broad general meaning, which would include all sorts of individuals; we speak of stepfathers and foster fathers. A presumed father is a “father.” (Ill. Rev. Stat. 1987, ch. 37, par. 801 — 3(13) (“the father whose paternity is presumed”).) If the legislature had intended a more narrow definition surely that intent would be found somewhere in the statute.
There has also been a judgment establishing paternity in this case, in the dissolution of marriage action filed by Brenda. Children are generally not barred by issues decided in their parents’ dissolution proceedings, because they are not parties or privies to such actions. (Simcox, 131 Ill. 2d 491, 546 N.E.2d 609.) A.K., however, was a party to the dissolution action here, because A.K. was represented by a guardian ad litem. Courts should be careful when they make children parties to litigation which would not otherwise be binding upon them. It could be argued that a final order had never been entered in the dissolution case at the time the juvenile court considered the question of paternity. The issue has not been raised by the parties, however, and I assume there was a final order here.
The State argues that it was not a party to the dissolution of marriage action and was not bound by any judgment in that action. The Parentage Act gives public agencies a much longer time to bring paternity actions than others are allowed, up to two years after the agency has ceased to provide assistance to the child. (See Ill. Rev. Stat. 1987, ch. 40, par. 2508(a)(1).) This case does not involve an agency bringing an action in its own right, for example to collect past-due child support. Assuming that section 8(a)(1) of the Parentage Act would allow the State’s Attorney to file a nonpaternity action (as opposed to an action to establish paternity) outside the standard two-year statute of limitations in a case like this, the State’s Attorney should be required to respect the best interests of the child in bringing the action. It is generally in the best interests of the child that questions of paternity be resolved as early as possible, and that once resolved the issue not be disturbed in the absence of extremely compelling circumstances. See In re Marriage of O’Brien (1993), 247 Ill. App. 3d 745, 749-50.
Under prior versions of the Paternity Act (see Ill. Rev. Stat. 1979, ch. 40, par. 1351 et seq.) it would not have been possible to show that a husband who was supporting a child of the marriage was not in fact the father of that child. (Happel v. Mecklenburger (1981), 101 Ill. App. 3d 107, 117, 427 N.E.2d 974, 982.) Habeas corpus or declaratory judgment actions might be available, but were disfavored. The Parentage Act for the first time specifically recognized an action to establish nonpaternity, making it subject to the same short statute of limitations which applied to other such actions. (See Ill. Rev. Stat. 1987, ch. 40, par. 2508(a)(3).) The legislature may have recognized that making nonpaternity actions easier could cause problems for apparent fathers, such as the problem addressed in this case. The same public act which adopted the Parentage Act also changed the Act to define “parent” to include “the father whose paternity is presumed.” (New material indicated by italics.) Pub. Act 83 — 1372, §24, eff. July 1, 1985 (1984 Ill. Laws 2627, 2643).
The trial court here required a paternity hearing on its own motion. The trial court was concerned that if someone other than Randy was the biological father that individual could subsequently upset any placement of A.K. The trial court’s concern is a real one. The problems caused by searching out biological fathers who have taken no interest in a child, just so their rights may be terminated, has led to major criticism of the Supreme Court’s decision in Stanley v. Illinois (1972), 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208. See 2 H. Clark, The Law of Domestic Relations in the United States §21.2, at 572-81 (2d ed. 1987).
Apart from that concern, there seems to be an assumption in the majority opinion that if a paternity action can be brought, it should be brought. (250 Ill. App. 3d at 982-83.) I reject that assumption. In In re Marriage of Ingram (1988), 176 Ill. App. 3d 413, 418, 531 N.E.2d 97, 100, a mother sought to bring a paternity action on behalf of the child. The court rejected the idea that an action which “[sought] to deprive the child of the only father he has known” could be considered brought on behalf of the child. (Ingram, 176 Ill. App. 3d at 418, 531 N.E.2d at 100.) A determination of a child’s biological father may not always be in a child’s best interests. (In re Custody of D.A. (1990), 201 Ill. App. 3d 810, 823, 558 N.E.2d 1355, 1362.) A trial court has discretion not to appoint a guardian ad litem who could file a paternity action on behalf of the child (Klawitter v. Crawford (1989), 185 Ill. App. 3d 778, 788, 541 N.E.2d 1159, 1165-66), and a guardian ad litem once appointed may choose not to file a paternity action. The court’s ruling on paternity here may have been viewed as a means of shortening the termination of parental rights case. However, until Randy was found to be unfit it could not be said that depriving A.K. of the only father he had ever known was in A.K.'s best interests.
It may be argued that even after parental rights have been terminated the decision who should adopt the child will be made on the basis of the child’s best interests, which is sufficient protection for someone in Randy’s position. A court does have the power to award custody to someone like Randy after parental rights have been terminated, but that possibility is not enough. That possibility would not suffice for a biological father who actually raised a child, and should not be enough for an apparent father who actually raised a child. An apparent father is more important to a child than a biological father whom the child does not know exists. These determinations are “unusually open to the subjective values of the judge.” (Santosky v. Kramer (1982), 455 U.S. 745, 762, 71 L. Ed. 2d 599, 612, 102 S. Ct. 1388, 1399.) Although the majority states that if an apparent father is allowed to remain in the case “he would have an opportunity to persuade the court to frame its dispositional order in such a way as to be consistent with any ability he might have to adopt the child” (250 Ill. App. 3d at 989), the statute as construed by the majority does not afford an apparent father any priority.
Although critical of the trial court’s dismissal of respondent from the case, the majority concludes that respondent suffered no prejudice because of (1) respondent’s 1987 conviction of battery against a seven-year-old child, (2) his 1985 probation for disorderly conduct, and (3) his juvenile record. It appears the trial court took judicial notice of those matters. Respondent was certainly never afforded any type of hearing, and we should not attempt to shore up the trial court’s ruling on the basis of any such one-sided evidence. It may be that respondent is less than desirable as a parent, or even that he is unfit. The rule which the State argues for, however, that apparent fathers who are not biological fathers may be dismissed from a termination of parental rights case at the earliest opportunity, would apply to good fathers as well as bad.
In dissolution cases a stepparent with close ties to a child has been awarded custody in preference to a biological parent who had not had custody for many years. (See Carey, 188 Ill. App. 3d 1040, 544 N.E.2d 1293.) As the majority points out, dissolution of marriage cases are different from termination of parental rights cases. In dissolution cases, the court must select a custodian, often being forced to choose between two very capable and loving parents. In termination cases the court deals with a child in trouble, and parents who are so questionable that the court must decide whether to completely terminate the relationship between parent and child. The fact remains that in Carey a stepmother with whom the child had resided was preferred as a custodian over the child’s natural mother. If a petition to terminate parental rights had been filed in Carey, under the trial court’s ruling here the preferred custodian, the stepmother, could not have been involved in the case. Under the rule of the majority, the stepmother would not have fared much better, being not much more than a bystander.
The State cites In re Estate of Edwards (1982), 106 Ill. App. 3d 635, 435 N.E.2d 1379, for the proposition that equitable adoption is not recognized in Illinois. Edwards involved foster parents who attempted to sue under the Wrongful Death Act (Ill. Rev. Stat. 1979, ch. 70, pars. 1 through 2.2) when the child was struck by a car and killed. The foster parents had not completed the steps for adoption, but fully intended to adopt, and had treated the child as their own. The court rejected their claim on the basis the Wrongful Death Act (not the Act) was to be strictly construed, but noted that in other States when actions were brought by children they had been allowed to sue as an “adopted” child and the adopting parent had been estopped from denying that he assumed the obligation. Edwards noted that on that basis in Illinois a child had been allowed to inherit from a foster parent. (Edwards, 106 Ill. App. 3d at 638, 435 N.E.2d at 1381-82, citing Dixon National Bank v. Neal (1955), 5 Ill. 2d 328, 331, 125 N.E.2d 463, 465.) The rule that a parent must be proved unfit before parental rights are terminated generally works in favor of the best interests of the child. With all their faults and mistakes parents will generally be more successful in caring for their children than strangers or agencies of the State. Edwards is not authority for the proposition that equitable adoption should not be recognized in a case like this one.