Opinion
4-23-1566
06-11-2024
In re L.J., a Minor v. Twain J., Respondent-Appellant). (The People of the State of Illinois, Petitioner-Appellee,
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Winnebago County No. 22JA453 Honorable Erin B. Buhl, Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court. Justices Harris and Steigmann concurred in the judgment.
ORDER
KNECHT, JUSTICE.
¶ 1 Held: The appellate court affirmed the trial court's judgment granting the guardian ad litem's amended petition to declare nonexistence of parentage, concluding respondent has not established plain error or ineffective assistance of counsel.
¶ 2 At the beginning of the juvenile neglect proceeding in this case, respondent, Twain J., stated under oath he signed the birth certificate as the father of the minor, L.J. (born September 2022). Nevertheless, the trial court sua sponte ordered respondent to submit to DNA testing. Respondent was determined not to be L.J.'s biological father. L.J.'s guardian ad litem (GAL) filed a petition to declare the nonexistence of parentage, which the court denied. After the relationship between respondent and L.J.'s mother, Nicole B., ended, the GAL filed an amended petition, which the court granted. Respondent appeals on several grounds. For the following reasons, we affirm.
¶ 3 I. BACKGROUND
¶ 4 A. GAL's Initial Petition
¶ 5 In September 2022, the State filed a petition to adjudicate L.J. neglected under the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/1-1 et seq. (West 2022)). At the shelter care hearing, respondent stated under oath he (1) was never married to Nicole, (2) was L.J.'s father, and (3) signed her birth certificate. The trial court sua sponte ordered DNA testing, explaining it did not yet "have a legal basis" to adjudge respondent L.J.'s legal father.
¶ 6 At a November 2022 pretrial conference, the trial court acknowledged respondent was identified on L.J.'s birth certificate as her father. Respondent was determined not to be L.J.'s biological father. The GAL filed a petition to declare the nonexistence of respondent's parentage. In January 2023, respondent responded, arguing the DNA results did not mean he had no parentchild relationship with L.J. Respondent also asserted he executed a valid voluntary acknowledgment of paternity (VAP), and he was therefore L.J.'s "legally established father." ¶ 7 The trial court conducted a hearing on the GAL's petition in February 2023. The GAL argued respondent signed the VAP pursuant to "a material mistake of fact in that he may have felt he was the father, may have been there at the birth, may have felt all along he was the father, but when the DNA comes back, the mistake is very obvious he is not." Respondent's counsel emphasized respondent signed a VAP and "has accepted the role as legal father from the beginning of [L.J.'s] life." The court found, based on the VAP and birth certificate, it was "undisputed at this point in time that [respondent] is in fact the legal father of [L.J.]" The court denied the GAL's petition and allowed respondent to remain the legal father.
¶ 8 B. GAL's Amended Petition
¶ 9 The trial court conducted a permanency hearing in November 2023. The GAL stated he intended to file a motion to reconsider the court's denial of his petition. The court allowed the GAL to instead file a new petition. In December 2023, the GAL filed an amended petition. The GAL argued the DNA results nullified any parent-child relationship between respondent and L.J. and alleged respondent and Nicole were "no longer in a relationship."
¶ 10 The trial court conducted a hearing on the amended petition later that month. Respondent's counsel noted, notwithstanding the DNA results, the court determined respondent was L.J.'s legal father. The court stated:
"The basis of my denial for that motion back in February was at the time [respondent] and [Nicole] were engaged in a relationship, a very close relationship, residing together. *** I do find that the circumstance has drastically changed since February. *** I believe she's no longer residing in the State of Illinois. Engaging in other relationships. Certainly, to say that these circumstances have changed, I think it is an understatement. We are literally at the absolute opposite end of the spectrum in terms of where we were at and near that February ruling.
Based on the DNA testing, the change in circumstances, my further review of the Illinois Parentage Act, I do find that it's in [L.J.'s] best interest, as well as consistent with the law, that [respondent] is declared not to be the father whether that's legal and/or biological for [L.J.] I am going to grant the amended petition, declare the non-existence of parentage, finding that [respondent] is not the father for [L.J.]"
¶ 11 This appeal followed.
¶ 12 II. ANALYSIS
¶ 13 We note this disposition is filed outside the 150-day time frame for accelerated cases set forth in Illinois Supreme Court Rule 311(a)(5) (eff. July 1, 2018), which states, "[e]xcept for good cause shown, the appellate court shall issue its decision within 150 days after the filing of the notice of appeal." Respondent filed his notice of appeal on December 22, 2023, making the deadline for the disposition May 20, 2024. However, respondent requested an extension of time to file his brief, which was granted. We therefore conclude good cause exists for the delayed filing of this disposition, despite this court making every effort to abide by the deadline.
¶ 14 On appeal, respondent argues (1) the trial court erred in considering L.J.'s best interest in granting the amended petition, (2) the court did not have the authority to sua sponte order him to submit to DNA testing, (3) the DNA test results were inadmissible, (4) the court lacked jurisdiction to consider the amended petition, and (5) there was no factual basis to grant the amended petition. Respondent acknowledges his counsel did not object to these alleged errors below but contends (1) we should nevertheless review them under the plain-error doctrine and (2) counsel's failure to object constitutes ineffective assistance. Finally, respondent maintains public policy warrants reversal of the court's judgment.
¶ 15 Plain errors or defects affecting substantial rights may be noticed even though they were not brought to the attention of the trial court. Ill. S.Ct. R. 615(a) (eff. Jan. 1, 1967). The plain-error doctrine provides a narrow and limited exception to the general rule of procedural default. People v. Ahlers, 402 Ill.App.3d 726, 733, 931 N.E.2d 1249, 1255 (2010). The plain-error doctrine permits a reviewing court to bypass the normal principles of forfeiture and review unpreserved errors where:
"(1) a clear or obvious error occurs and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the [respondent], regardless of the seriousness of the error, or (2) a clear or obvious error occurs and that error is so serious that it affected the fairness of the [respondent's] trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence." People v. Piatkowski, 225 Ill.2d 551, 565, 870 N.E.2d 403, 410-11 (2007).
When applying the plain-error doctrine, a reviewing court must first determine whether an error occurred at all. People v. Hood, 2016 IL 118581, ¶ 18, 67 N.E.3d 213. "Where there is no error at all, there can be no plain error." People v. Rodriguez, 2014 IL App (2d) 130148, ¶ 73, 21 N.E.3d 466. Under the plain-error doctrine, "the burden of persuasion remains with [respondent]." People v. Walker, 232 Ill.2d 113, 124, 902 N.E.2d 691, 697 (2009).
¶ 16 A. Respondent's Claimed Unpreserved Arguments
¶ 17 1. The Trial Court's Consideration of L.J. 's Best Interest
¶ 18 The trial court considered L.J.'s best interest in granting the amended petition. The State concedes this is not permissible under the Illinois Parentage Act of 2015 (Parentage Act) (750 ILCS 46/101 et seq. (West 2022)). See In re A.A., 2015 IL 118605, ¶ 27, 43 N.E.3d 947 (holding, pursuant to the "clear and unambiguous" terms of the Parentage Act, "[a]n action brought under the Parentage Act on behalf of a minor to declare the nonexistence of a parent and child relationship does not provide for the court to consider the best interests of the child prior to granting the petition"). Thus, the court committed a "clear or obvious error." Piatkowski, 225 Ill.2d at 565. However, the court also considered the DNA results and the "change in circumstances" due to respondent and Nicole not being in a relationship anymore and Nicole no longer residing in Illinois. This was additional evidence supporting the court's decision, and it was not closely balanced. Respondent has failed to meet his burden of persuasion under the plain-error doctrine. Walker, 232 Ill.2d at 124.
¶ 19 2. Authority to Order Respondent to Submit to DNA Testing
¶ 20 Next, respondent argues the trial court did not have the authority to sua sponte order him to submit to DNA testing where he stated he signed L.J.'s birth certificate.
¶ 21 Whether the trial court erred in sua sponte ordering respondent to submit to DNA testing after he stated he signed L.J.'s birth certificate presents a mixed question of law and fact. The interpretation of the Parentage Act presents a question of law. But we also must consider how the facts fall within the parameters of the Parentage Act. See In re Armani S., 2020 IL App (1st) 200616, ¶ 25, 188 N.E.3d 327. Under the "clearly erroneous standard" for mixed questions of law and fact, "[w]e will reverse only if, after review of the entire record, we are left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Armani S., 2020 IL App (1st) 200616, ¶ 26.
¶ 22 If a mother and father were not married when a child was born, "the name of the father shall be entered on the child's birth certificate only if the mother and the person to be named as the father have signed a [VAP]." (Emphasis added.) 410 ILCS 535/12(4) (West 2022). Signing a VAP can establish a parent-child relationship. 750 ILCS 46/301 (West 2022). A man who has so established a parent-child relationship is an "[acknowledged father." 750 ILCS 46/103(a) (West 2022). Importantly,
"[a] child is not bound by a determination of parentage under this Act unless:
(1) the determination was based on an unrescinded acknowledgment *** and the acknowledgment is consistent with the results of genetic testing;
(2) the adjudication of parentage was based on a finding consistent with the results of genetic testing and the consistency is declared in the determination or is otherwise shown;
(3) the child was a party or was represented in the proceeding determining parentage by a [GAL] ***; and
(4) the child was no longer a minor at the time the proceeding was initiated and was the moving party resulting in the parentage determination."750 ILCS 46/621(b)(1)-(4) (West 2022).
¶ 23 Those statutory provisions aside, Illinois Supreme Court Rule 215(a) (eff. Jan. 1, 2018), which provides "[i]n any action in which the physical or mental condition of a party *** is in controversy, the court *** may order such party to submit to a physical *** examination," allows a trial court to order DNA testing of a potential father. See J.S.A. v. M.H., 384 Ill.App.3d 998, 1007, 893 N.E.2d 682, 690 (2008) ("[T]he trial court has the authority pursuant to Rule 215 to compel [a man identified on a minor's birth certificate as the father] to submit to DNA testing" where he "filed a declaration of parentage in the paternity action," thereby "put[ting] his physical condition at issue.").
¶ 24 Here, respondent stated under oath he signed L.J.'s birth certificate. Although a VAP does not appear in the record, L.J.'s birth certificate does, and it lists respondent as her father. Respondent could not be identified on L.J.'s birth certificate as her father without signing a VAP. The birth certificate circumstantially establishes respondent signed a VAP. See In re Reyes, 369 Ill.App.3d 150, 154, 860 N.E.2d 456, 458 (2006) (noting the respondent was "named as the father on the child's birth certificate" and "hold[ing] this to be sufficient evidence, albeit circumstantial, to find that [he] signed a written acknowledgment of parentage"). This is sufficient to make respondent L.J.'s legal father. However, only one condition for binding L.J. to the court's initial parentage determination was met. (L.J. was "represented in the proceeding determining parentage by a [GAL]." 750 ILCS 46/621(b)(3) (West 2022)). For this reason, the court could sua sponte order respondent to submit to DNA testing. Additionally, the court had the authority under Rule 215 to order this. See J.S.A., 384 Ill.App.3d at 1007. Thus, we are not left with the definite and firm conviction the court erred in sua sponte ordering respondent to submit to DNA testing. Armani S., 2020 IL App (1st) 200616, ¶ 26. As the court did not err, there is no clear or obvious error for purposes of the plain-error doctrine. Rodriguez, 2014 IL App (2d) 130148, ¶ 73. Respondent has failed to meet his burden of persuasion under the plainerror doctrine. Walker, 232 Ill.2d at 124.
¶ 25 3. Admissibility of the DNA Results
¶ 26 Next, respondent argues the DNA test results were inadmissible.
¶ 27 As explained above, the fact respondent is identified on L.J.'s birth certificate as her father circumstantially establishes he signed a VAP and was, therefore, L.J.'s legal father. Even when a child has an "acknowledged parent," the results of genetic testing are admissible to adjudicate parentage if obtained "pursuant to an order of the court." 750 ILCS 46/614(a)(2) (West 2022). As the trial court appropriately ordered respondent to submit to DNA testing, the results were admissible to adjudicate the parentage of L.J. Therefore, the court did not err in admitting the results. As the court did not err, there is no clear or obvious error for purposes of the plain-error doctrine. Rodriguez, 2014 IL App (2d) 130148, ¶ 73. Respondent has failed to meet his burden of persuasion under the plain-error doctrine. Walker, 232 Ill.2d at 124.
¶ 28 4. The Trial Court S Jurisdiction to Consider the Amended Petition
¶ 29 Next, respondent argues the trial court lacked jurisdiction to consider the amended petition. Specifically, respondent contends the court lost jurisdiction to modify or vacate the February 3, 2023, order denying the initial petition thirty days later (i.e., March 5, 2023). We note because jurisdiction is not subject to forfeiture or waiver, jurisdiction is not subject to plain error review. See Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill.2d 325, 33334 (2002) ("The issue of subject matter jurisdiction cannot be waived. [Citation.] Therefore, the issue may be raised at any time.").
¶ 30 Here, contrary to respondent's argument, the trial court did not vacate or modify the February 2023 order. Instead, it took up the GAL's amended petition and issued a new order. As such, respondent's contention the court lost jurisdiction regarding the February 2023 order fails. Further, to the extent respondent implies the only vehicle available to the GAL to present such an amended petition to the court was under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2022)), we disagree.
¶ 31 For an "acknowledged father" to vacate a parentage order entered pursuant to a VAP after 30 days, he must file a motion under section 2-1401 of the Code. See People ex rel. Department of Public Aid v. Smith, 212 Ill.2d 389, 399, 818 N.E.2d 1204, 1210 (2004) ("[T]he legislature has provided that [VAPs] should be attacked by the method of relief used to attack final orders and judgments."); see also In re N.C. , 2013 IL App (3d) 120438, ¶ 18, 993 N.E.2d 134 (citing Smith to explain, for "a man who voluntarily acknowledges paternity," the "method to challenge a VAP is through a motion under section 2-1401").
¶ 32 However, no such similar requirement applies to a GAL. Indeed, section 2-1401 does not preclude a GAL from seeking to disestablish paternity through a different pleading. As a result, the GAL was not required to file the amended petition as a motion under section 2-1401 for the trial court to consider it.
¶ 33 Respondent also argues the amended petition was barred by res judicata and, as such, the trial court did not have jurisdiction to consider it. However, the doctrine of res judicata "is not a jurisdictional bar." Roberts v. Burdick, 2021 IL App (5th) 190119, ¶ 43, 190 N.E.3d 261. Thus, respondent's res judicata argument is unavailing.
¶ 34 In sum, the trial court was not deprived of jurisdiction over the GAL's amended petition and did not err in considering it.
¶ 35 5. The Trial Court 's Factual Basis for Granting the Amended Petition
¶ 36 Next, respondent argues the trial court had no factual basis for granting the amended petition. Specifically, respondent argues (1) the facts on which the court relied were "not in evidence" and (2) the GAL did not introduce any evidence at the hearing to support the court's decision.
¶ 37 The information on which the trial court appropriately based its decision was the DNA results and the "change in circumstances," i.e., respondent and Nicole not being in a relationship anymore and Nicole no longer residing in Illinois. The DNA results were discussed at the November 2022 pretrial conference and are in the common law record. At a November 2023 permanency hearing, the court mentioned Nicole living in Florida and being "engaged with a new boyfriend and/or fiance" as one of the reasons it found she had not made reasonable efforts or reasonable progress. In the report for that hearing (also in the common law record), the caseworker narrated communications with Nicole the previous month in which Nicole stated she is living in Florida with a new boyfriend and she and respondent had not been together "in months." Thus, there was an adequate factual basis in the record from which the court could grant the amended petition. That the GAL did not introduce this information at the hearing does not negate the fact it was in the record before the hearing. As the court did not grant the amended petition without a factual basis, there is no clear or obvious error for purposes of the plain-error doctrine. Rodriguez, 2014 IL App (2d) 130148, ¶ 73. Respondent has failed to meet his burden of persuasion under the plain-error doctrine. Walker, 232 Ill.2d at 124.
¶ 38 B. Respondent's Contention of Ineffective Assistance of Counsel
¶ 39 Respondent argues his counsel was ineffective for failing to object to these alleged errors. A parent is entitled to the effective assistance of counsel in proceedings under the Juvenile Court Act. In re Br. M., 2021 IL 125969, ¶ 42, 182 N.E.3d 693. Claims of ineffective assistance of counsel are evaluated under the familiar two-prong standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under that standard, a parent must show (1) counsel's performance failed to meet an objective standard of competence and (2) counsel's deficient performance resulted in prejudice to the parent. In re Ch. W., 408 Ill.App.3d 541, 546, 948 N.E.2d 641, 648 (2011). To satisfy the prejudice prong, the parent must prove a reasonable probability exists, but for counsel's unprofessional errors, the result of the proceeding would have been different. Ch. W., 408 Ill.App.3d at 547.
¶ 40 Here, counsel's failure to object to the trial court's consideration of L.J.'s best interest might be deemed deficient performance. However, no reasonable probability exists the result would have been different had counsel objected. This is due to the other, not closely balanced, evidence the court appropriately considered. Thus, respondent cannot establish his counsel was ineffective. As respondent has failed to show the court otherwise erred, his counsel's failure to object to the other claimed errors does not constitute deficient performance. See People v. Holmes, 397 Ill.App.3d 737, 745, 922 N.E.2d 1179, 1187 (2010) ("It is axiomatic that a defense counsel will not be deemed ineffective for failing to make a futile objection.").
¶ 41 C. Respondent's Public Policy Argument
¶ 42 Respondent contends "public policy" warrants reversal of the trial court's judgment. Respondent notes the statutory mechanism for declaring "acknowledged parents" facilitates child support orders and allows children to receive Social Security benefits. "Illinois recognizes the right of every child to the physical, mental, emotional, and financial support of his or her parents." 705 ILCS 46/102 (West 2022). However, this is not a basis for reinstating an adjudication of parentage where, as here, the child's mother and purported father are no longer in a relationship and DNA testing confirms he is not the biological father. Respondent also argues "it is consistent with public policy that this Court should require compliance with the law when a party is seeking to legally orphan a child." However, the GAL complied with the law in filing a petition to declare the nonexistence of parentage. Moreover, while the court erred in considering L.J.'s best interest, it also relied on other appropriate evidence. Thus, this argument is unavailing. ¶ 43 In sum, (1) while the trial court committed a clear or obvious error in considering L.J.'s best interest as one of its bases for granting the amended petition, the additional evidence the court relied on was not closely balanced for purposes of the plain-error doctrine; (2) the court did not otherwise err; (3) respondent cannot establish ineffective assistance of counsel; and (4) public policy does not warrant reversal.
¶ 44 III. CONCLUSION
¶ 45 For the reasons stated, we affirm the trial court's judgment.
¶ 46 Affirmed.