In re Parentage of D.S.

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by Reporter of

Decisions

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Illinois Official Reports to the accuracy

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this document

Appellate Court Date: 2022.11.01

09:26:47 -05'00'

In re Parentage of D.S., 2021 IL App (1st) 192257

Appellate Court In re PARENTAGE OF D.S., a Minor (Colton S., Petitioner-

Caption Appellant, v. Aura C.-K., Respondent-Appellee).

District & No. First District, Second Division

No. 1-19-2257

Filed April 27, 2021

Decision Under Appeal from the Circuit Court of Cook County, No. 2018-D-8002; the

Review Hon. Edward A. Arce, Judge, presiding.

Judgment Affirmed.

Counsel on Lou Karnezis, of Karnezis Law Group LLC, of Park Ridge, for

Appeal appellant.

No brief filed for appellee.

Panel JUSTICE COBBS delivered the judgment of the court, with opinion.

Justices Lavin and Pucinski concurred in the judgment and the

opinion.

OPINION

¶1 Petitioner-Appellant, Colton S., filed a petition seeking a declaration of parentage and

allocation of parental responsibilities for D.S., the daughter of respondent-appellee, Aura C.-

K. Respondent moved to strike the petition for parentage pursuant to section 622 of the Illinois

Parentage Act of 2015 (Parentage Act) (750 ILCS 46/622 (West 2018)), which prohibits the

allocation of parental responsibilities to men who father through sexual assault or abuse or

otherwise nonconsensual sexual penetration. The court granted respondent’s motion and

dismissed petitioner’s petition with prejudice. Petitioner now appeals, arguing that dismissal

was improper because the court failed to address the effect of consent under section 622(b).

For the following reasons, we affirm.

¶2 I. BACKGROUND

¶3 Respondent was born on April 16, 2001. She has known petitioner since December 2016

and, at some point, had a sexual relationship with him. On December 12, 2017, at the age of

16, respondent gave birth to D.S. in Cook County.

¶4 On September 12, 2018, pursuant to section 601 of the Parentage Act, petitioner filed a

petition to establish parentage and for allocation of parental responsibilities for D.S. In his

petition, he alleged that D.S. currently resides with him, that respondent is unfit, and that it is

in D.S.’s best interest for petitioner to be adjudicated her father and allocated sole parental and

decision-making responsibilities.

¶5 On November 13, 2018, respondent filed an answer, pro se, denying that she is unfit to

exercise parental responsibilities. Respondent also stated that petitioner “is an unfit parent”

and that she had requested a paternity test because she did not believe that petitioner was D.S.’s

father.

¶6 On December 24, 2018, respondent filed an “Emergency Motion for Temporary

Restraining Order Injunctive and Other Relief and an Immediate Surrender of the Child.” In

the motion, respondent stated that while she was living at her great-grandmother’s home,

“sometime in September/October 2018 D.S. began to live with [petitioner’s] parents and [she]

would visit and enjoy parenting time on a daily basis.” However, after filing the instant petition,

petitioner and his parents began to restrict respondent’s ability to see D.S. Respondent argued

that she did not consent to petitioner’s parenting time and that he was in violation of section

622 of the Parentage Act. As such, respondent requested the court order the immediate return

of D.S. to her care. Attached to her emergency motion was an affidavit in which she averred

that she was 15 years old, and petitioner was 18 years old when they initiated their sexual

relationship. She further averred that petitioner was emotionally and physically abusive

throughout their relationship. The court denied the motion, finding that an emergency did not

exist.

¶7 At some point, the Department of Children and Family Services (DCFS) became involved,

and on December 28, 2018, DCFS issued a “safety plan,” naming petitioner the custodial

parent.

¶8 On January 7, 2019, respondent filed an “Affirmative Petition and/or Motion to Strike

Petitioner’s Petition to Establish Parentage and for Allocation of Parental Responsibilities”

pursuant to section 622(f) of the Parentage Act. Again, respondent argued that allocation of

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parental responsibilities to petitioner was prohibited under section 622 because conception of

D.S. was the result of nonconsensual sexual intercourse and she did not consent to petitioner’s

parenting time.

¶9 On February 6, 2019, petitioner filed a response wherein he confirmed that he was 19 years

old, and respondent was 16 years old when D.S. was born. Subsequently, on February 13,

2019, petitioner filed a memorandum of law in response to respondent’s motion to strike. In

the memorandum, petitioner argued that the issue before the court was “whether [respondent]

consented to the exercise of [p]etitioner’s parental rights.” In that regard, he asserted that

respondent and her family had consented to petitioner’s parenting time and parental

responsibilities since D.S. was born and that she is only now objecting to his parenting.

Petitioner further argued that it would be in the best interest of D.S. to allow him parental

responsibilities.

¶ 10 Attached to the memorandum was the DCFS “safety plan” dated December 28, 2018. The

document identified the “safety threat” as a caregiver or member of the household, namely

respondent, “whose behavior is violent and out of control.” The document stated that

respondent was required to attend anger management and parenting classes and would only be

permitted supervised visits with D.S. at petitioner’s parents’ house. Additionally, two police

reports were also attached to the memorandum as exhibits. In the first, respondent reported an

online threat made against her grandmother, and in the second, respondent had been reported

to police as missing by her grandmother, but she returned home stating that she had just been

lost in Chicago.

¶ 11 A hearing was held, at which counsel for respondent contextualized the issue before the

circuit court as one of standing. Prior to receiving evidence, the court commented that it would

be a “tight hearing” on the issue of standing and not “fitness.” The following testimony was

presented.

¶ 12 Petitioner testified that he was born on June 1, 1998, and has one child, D.S., with

respondent. He confirmed that he is listed on D.S.’s birth certificate as the father. He stated

that he met respondent in December 2016.

¶ 13 Respondent testified that petitioner is the father of her child and that she was 15 years old

when D.S. was conceived. Respondent never complained to the police that petitioner had

sexual intercourse with her against her will. She also testified that petitioner was mentally,

physically, and verbally abusive toward her but she never called the police to complain about

petitioner’s abuse because she was afraid. Finally, respondent testified that she did not consent

either to petitioner, or to anyone in his family, parenting her child.

¶ 14 Amy S., petitioner’s mother, testified that she met with representatives from DCFS while

respondent was present and, on those occasions, respondent did not complain that the sexual

intercourse between her and petitioner was nonconsensual. She further testified that respondent

never complained to her that petitioner was abusive.

¶ 15 After the hearing, respondent filed a memorandum of law in support of her motion to

dismiss, in which she argued that petitioner’s reading of the Parentage Act would negate its

obvious intent to protect victims from their assailants and would permit rapists to remain

involved with their victims and resulting children through coercion or charm. She also argued

that a “best interest of the child” analysis is simply not contemplated by section 622. Petitioner

filed a reply, reasserting his argument that respondent consented to petitioner’s parenting of

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D.S. “long ago” and that the Act does not support a reading that would allow respondent to

simply revoke her consent whenever it is convenient for her.

¶ 16 On October 8, 2019, the circuit court dismissed the petition with prejudice. In doing so, the

court concluded that respondent has established by “clear and convincing evidence” that

petitioner had “committed an act of non-consensual sexual penetration for his conduct in

fathering that child” due to respondent’s age, which rendered her “incapable of giving consent

to an act of sexual penetration.”

¶ 17 This appeal followed.

¶ 18 II. ANALYSIS

¶ 19 As an initial matter, we note that respondent has failed to file a brief in this appeal.

Generally, we will not act as an advocate for an appellee who fails to file a brief or search the

record for the purpose of sustaining the court’s judgment. First Capitol Mortgage Corp. v.

Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976). However, failure to file a brief does

not require an automatic reversal, and the appellant continues to bear the burden of establishing

error. Id. at 131-32. “When the record is simple, and the claimed errors are such that this court

can easily decide them on the merits without the aid of an appellee’s brief, this court should

decide the appeal on its merits.” Plooy v. Paryani, 275 Ill. App. 3d 1074, 1088 (1995). We find

that the record and the issues involved herein are straightforward and clear enough that the

appeal should be decided on its merits.

¶ 20 A. Standard of Review

¶ 21 The issue before us is whether the circuit court erred in dismissing with prejudice the

petition to establish parentage and allocate parental responsibility or parental time. Before

turning to the merits of petitioner’s arguments, we must first determine under which section of

the Code of Civil Procedure (Code) the dismissal should be analyzed. See 735 ILCS 5/2-615,

2-619 (West 2018). The circuit court did not identify which section of the Code served as the

basis for dismissal, and other than section 622(f) of the Parentage Act, respondent cites no

other statutory provision as the basis for which the petition should be stricken. Throughout his

brief, petitioner argues, in the main, that dismissal under section 2-615 was not appropriate as

there are facts that may be proven, which would defeat dismissal. He maintains, however, that

dismissal under either section 2-615 or 2-619 of the Code was improper. Thus, reversal is

warranted.

¶ 22 Section 2-615 provides that a pleading or portion thereof may be stricken because it is

substantially insufficient in law. Id. § 2-615. That is, a motion filed under section 2-615 tests

the legal sufficiency of the pleading. Cohen v. McDonald’s Corp., 347 Ill. App. 3d 627, 632

(2004). In such a case, the court accepts as true all well-pleaded facts and reasonable inferences

to be drawn from those facts and determines whether the allegations are sufficient to state a

cause upon which relief may be granted. Id.

¶ 23 On the other hand, a motion to dismiss pursuant to section 2-619 admits the legal

sufficiency of the pleading and raises defects, defenses, or other affirmative matters that act to

defeat the claim. Id. Thus, the issue is whether, after reviewing the pleadings, depositions, and

affidavits, there is a genuine issue of material fact that precludes dismissal, or whether

dismissal is proper as a matter of law. Id.

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¶ 24 In evaluating a circuit court’s dismissal, we look at the substance of the motion to dismiss,

not its label. See Winters v. Wangler, 386 Ill. App. 3d 788, 793 (2008). Respondent stated in

her petition or motion to strike that it was filed pursuant to section 622(f) of the Parentage Act.

That subsection permits the mother (or guardian of the mother) to file a petition as “an

affirmative defense in any proceeding filed by the person described in subsection (a) of this

Section regarding the child.” 750 ILCS 46/622(f) (West 2018). Section 2-619(a)(9) permits

dismissal where “the claim asserted against defendant is barred by other affirmative matter

avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2018).

Because section 622 was intended as an affirmative defense in a proceeding that has already

been instituted, we construe respondent’s filing as a motion to dismiss pursuant to section 2-

619 of the Code, which, as stated, admits the legal sufficiency of the pleading but raises an

affirmative defense to defeat the claim.

¶ 25 “The purpose of a section 2-619 motion to dismiss is to dispose of issues of law and easily

proved issues of fact at the outset of litigation.” Van Meter v. Darien Park District, 207 Ill. 2d

359, 367 (2003). “An ‘affirmative matter’ in this instance is something in the nature of a

defense that negates the cause of action completely or refutes crucial conclusions of law or

conclusions of material fact contained in or inferred from the complaint.” Anderson v. Chicago

Transit Authority, 2019 IL App (1st) 181564, ¶ 21. It is the moving party’s burden to establish

the affirmative matter defeating the nonmoving party’s claim. Pruitt v. Pruitt, 2013 IL App

(1st) 130032, ¶ 14. In ruling on a section 2-619 motion, all pleadings and supporting documents

must be construed in a light most favorable to the nonmoving party, and the motion should be

granted where no material facts are in dispute and the defendant is entitled to dismissal as a

matter of law. Kheirkhahvash v. Baniassadi, 407 Ill. App. 3d 171, 176 (2011). However, “[i]f

the affidavits present disputed facts, the parties must be afforded the opportunity to have an

evidentiary hearing.” A.F.P. Enterprises, Inc. v. Crescent Pork, Inc., 243 Ill. App. 3d 905, 913

(1993).

¶ 26 In the present case, the court held an evidentiary hearing and thus we “ ‘must review not

only the law but also the facts, and may reverse the trial court order if it is incorrect in law or

against the manifest weight of the evidence.’ ” Hernandez v. New Rogers Pontiac, Inc., 332

Ill. App. 3d 461, 464 (2002) (quoting Kirby v. Jarrett, 190 Ill. App. 3d 8, 13 (1989)). A factual

finding is against the manifest weight of the evidence only if the opposite conclusion is clearly

evident or the finding itself is unreasonable, arbitrary, or not based on the evidence presented.

Offord v. Fitness International, LLC, 2015 IL App (1st) 150879, ¶ 16. Because this appeal

involves interpretation of the Parentage Act, which is an issue of law, our review is de novo.

Unzicker v. Kraft Food Ingredients Corp., 203 Ill. 2d 64, 74 (2002). Accordingly, we review

whether the trial court’s findings of fact are against the manifest weight of the evidence while

reviewing the questions of law de novo (Offord, 2015 IL App (1st) 150879, ¶ 15), and we may

affirm the court’s dismissal based on any grounds supported by the record (King v. City of

Chicago, 324 Ill. App. 3d 856, 859 (2001)).

¶ 27 B. Parentage Act

¶ 28 Section 622 of the Parentage Act, enacted in 2016, is titled “Allocation of parental

responsibilities or parenting time prohibited to men who father through sexual assault or sexual

abuse” and provides, in pertinent part, as follows:

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“(a) This Section applies to a person who has been found to be the father of a child

under this Act and who:

(1) has been convicted of or who has pled guilty or nolo contendere to a

violation of Section 11-1.20 (criminal sexual assault), Section 11-1.30 (aggravated

criminal sexual assault), Section 11-1.40 (predatory criminal sexual assault of a

child), Section 11-1.50 (criminal sexual abuse), Section 11-1.60 (aggravated

criminal sexual abuse), Section 11-11 (sexual relations within families), Section

12-13 (criminal sexual assault), Section 12-14 (aggravated criminal sexual assault),

Section 12-14.1 (predatory criminal sexual assault of a child), Section 12-15

(criminal sexual abuse), or Section 12-16 (aggravated criminal sexual abuse) of the

Criminal Code of 1961 or the Criminal Code of 2012, or a similar statute in another

jurisdiction, for his conduct in fathering that child; or

(2) at a fact-finding hearing, is found by clear and convincing evidence to have

committed an act of non-consensual sexual penetration for his conduct in fathering

that child.

(b) A person described in subsection (a) shall not be entitled to an allocation of any

parental responsibilities or parenting time with that child without the consent of the

child’s mother or guardian. If the person described in subsection (a) is also the guardian

of the child, he does not have the authority to consent to parenting time or the allocation

of parental responsibilities under this Section. If the mother of the child is a minor, and

the person described in subsection (a) is also the father or guardian of the mother, then

he does not have the authority to consent to the allocation of parental responsibilities

or parenting time.

***

(f) A petition under this Section may be filed by the child’s mother or guardian

either as an affirmative petition in circuit court or as an affirmative defense in any

proceeding filed by the person described in subsection (a) of this Section regarding the

child.” 750 ILCS 46/622 (West 2018). 1

¶ 29 “The cardinal rule of statutory construction is to ascertain and give effect to the legislature’s

true intent.” Unzicker, 203 Ill. 2d at 75. Intent should be determined more from consideration

of the reason and necessity, objects, and purposes of the law than from its language. Mashal v.

City of Chicago, 2012 IL 112341, ¶ 21. The court considers statutory language in light of the

statute’s purposes and evils the law was designed to remedy. Id. Details of the statute should

be construed in conformity with its dominant purpose. Chrysler Credit Corp. v. Ross, 28 Ill.

App. 3d 165, 172 (1975). The court’s construction should be in such a manner as will

accomplish those objects sought by their enactments. In re Petition of K.M., 274 Ill. App. 3d

189, 195 (1995). If the plain language of a statute is clear and unambiguous, we will give that

meaning effect without resort to other aids of statutory construction. Palm v. Holocker, 2018

1

“ ‘Parental responsibilities’ ” is defined in section 600(d) of the Illinois Marriage and Dissolution

of Marriage Act as “both parenting time and significant decision-making responsibilities with respect

to a child.” 750 ILCS 5/600(d) (West 2018). “ ‘Parenting time’ ” is defined in section 600(e) of the

Illinois Marriage and Dissolution of Marriage Act as “the time during which a parent is responsible for

exercising caretaking functions and non-significant decision-making responsibilities with respect to the

child.” Id. § 600(e).

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IL 123152, ¶ 21. The court, of course, must view the statute as a whole, construing the words

and phrases in light of the other relevant statutory provisions. State ex rel. Leibowitz v. Family

Vision Care, LLC, 2020 IL 124754, ¶ 35. Finally, we may not depart from a statute’s plain

language by reading into it exceptions, limitations, or conditions the legislature did not express.

In re Hernandez, 2020 IL 124661, ¶ 18.

¶ 30 Because the parties were never married, the Parentage Act (750 ILCS 46/101 et seq. (West

2018)) governs the particular proceedings in this case. In enacting the Parentage Act, the

General Assembly established a “statutory mechanism that serves to legally establish parent

and child relationships in Illinois.” In re Estate of Poole, 207 Ill. 2d 393, 404 (2003). 2 The

purpose of the Parentage Act is to further the public policy of Illinois to “recognize[ ] the right

of every child to the physical, mental, emotional, and financial support of his or her parents.”

750 ILCS 46/102 (West 2018); J.S.A. v. M.H., 224 Ill. 2d 182, 198 (2007).

¶ 31 Section 622(a) of the Parentage Act identifies the population of men who are prohibited

from allocation of parental responsibilities or parenting time. Subsection (a)(1) specifically

identifies men who were either convicted or pled guilty to a criminal sexual offense. 750 ILCS

46/622(a)(1) (West 2018). Subsection (a)(2) specifically identifies men who fathered children

resulting from nonconsensual sexual penetration, thereby including perpetrators of sexual

abuse or sexual assault, but who have not been convicted. Under section 622, a fact-finding

hearing is mandated for purposes of determining paternity for men who fit within the definition

of subsection (a)(2). Id. § 622(a)(2). Significantly, subsection (b), which we characterize as

one of the section’s several consent provisions, identifies those individuals, generally the

mother, who may consent, by means of an affirmative petition, to an offender father’s parental

responsibilities and parenting time. 3 Id. § 622(b). The consent provisions are without

limitation, conditions, or exceptions. Subsection (f) sets out the manner in which the mother

may either give or object to consent in any proceeding filed by persons identified in subsection

(a). Overall, section 622 is a legislative acknowledgment that a mother’s will was either

overborn, such that no consent was given, or that due to the age of minority, no consent could

be given for the sexual conduct that produced a child. The practical effect of the section is to

prohibit persons described in section (a) from the rights and enjoyment of parenting unless

consented to by the mother. In our view, the section promotes Illinois’s strong public policy

against victimized women suffering revictimization that would result from an offender father

engaging in parental privilege with the victim mother.

¶ 32 Petitioner does not dispute the circuit court’s finding that there is clear and convincing

evidence that petitioner committed an act of nonconsensual sexual penetration, which resulted

in D.S.’s conception. We agree with the finding as well, as it is supported by the evidence

presented at the hearing. “[T]he prescribed age of consent in Illinois is 17 ***.” People v.

2

The Parentage Act of 1984 was repealed in its entirety (see Pub. Act 99-85, § 977 (eff. Jan. 1,

2016)) and replaced by the Parentage Act of 2015 (see Pub. Act 99-85, § 101 (eff. Jan. 1, 2016) (adding

750 ILCS 46/101 et seq.)). Section 6-5 in the prior act was retained as section 622 in the current act.

3

Under subsection (c), the mother is given authority to “decline support and maintenance

obligations from the father.” 750 ILCS 46/622(c) (West 2018). Under subsection (d), the mother is

given authority to consent to the father having “inheritance or other rights,” otherwise he is not entitled

to any. Id. § 622(d). And finally, under subsection (e), the mother is given authority to consent to

relatives of the father petitioning for parental responsibilities or parenting time. Id. § 622(e).

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Lloyd, 2013 IL 113510, ¶ 30; see also 720 ILCS 5/11-1.50(c) (West 2018) (the offense of

criminal sexual abuse occurs where the victim is “at least 13 years of age but under 17 years

of age” and the person who committed the act of sexual penetration is “less than 5 years older

than the victim”). Regardless of respondent’s testimony that petitioner “forced” her to have

sex with him and that he was abusive toward her throughout their relationship, a lack of consent

is presumed by law due to respondent’s age. Thus, under subsection (a)(2), petitioner is

prohibited from parenting time with the child. The only contested issue in this case is whether

the mother’s alleged prior consent to petitioner’s parenting time, once given, may be

withdrawn.

¶ 33 Both petitioner and respondent argued the issue of consent to parental responsibilities and

parenting time in their memoranda related to the evidentiary hearing. The circuit court,

however, limited the fact-finding hearing to the issue of whether subsection (a) was applicable

to petitioner. The court’s order following the hearing did not address consent to parental

responsibilities whatsoever. We note the circuit court’s mention of “consent” in its order. Clear

from the language, however, is that the court’s ruling was with regard to the issue of consent

to sexual penetration, as opposed to consent to parenting.

¶ 34 We believe that the circuit court’s ruling, which made no factual findings on the issue of

consent, was consistent with the objects of the Parentage Act, protection of the mother’s right

to withhold consent without fear of coercion by the offender father. Other than subsection

(a)(2)’s provision for a hearing to determine whether conception resulted from nonconsensual

sexual penetration, section 622 mandates no judicial determination of any kind on any issue

covered in this provision.

¶ 35 Petitioner argues in his brief that respondent’s prior consent to petitioner’s parenting, which

he claims is evidenced by a variety of actions taken prior to the instant action, should foreclose

respondent from asserting her rights to decide whether petitioner is permitted to parent the

child. Essentially, he argues that the statute should be construed as requiring a judicial

determination of whether the mother has previously consented at any point to the father’s

parenting of the child. He further argues that the DCFS safety plan lends credence to his

assertion that respondent had previously consented to his parenting privileges.

¶ 36 We note language in the circuit court’s order that there was “no evidence in the record that

DCFS conducted a fact-finding hearing prior to placing the child with the [p]etitioner.”

Regardless, although nothing in section 622 of the Parentage Act bars a mother from giving

consent without the filing of a petition, neither does anything in the Parentage Act bind her to

a prior given consent. To ensure against a victim mother’s unwelcome shared parenting with

an offender father, or potential coerced consent, the Parentage Act provides a mechanism by

which she may statutorily express her intent to either allow or to bar the same. See 750 ILCS

46/622(f) (West 2018). No affirmative petition appears in the record. Not only is petitioner’s

interpretation not supported by the plain language of the statute, but it is also contrary to the

legislature’s intent to vest in the mother, who conceived as a result of conduct defined in

subsections (a)(1) or (a)(2), complete autonomy to decide the issue of parenting rights. Further,

to read the statute as petitioner urges creates the opportunity for an offender father, who might

have obtained the mother’s consent as a result of coercion, to do exactly that which the

Parentage Act seeks to protect against.

¶ 37 Petitioner additionally argues that the court’s dismissal of his petition is not only contrary

to the plain language of the statute, the policy of our state, but also the best interest of the minor

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child, “the guidepost for all actions involving minor children, and the very purpose of the Act.”

To be clear, petitioner brought this action under the Parentage Act. Petitioner misses the point

of section 622. A determination of parentage does not automatically vest in the father parental

rights when fatherhood was the result of what the state has defined as illegal or criminal sexual

conduct. Absent a mother’s free and unfettered consent, fathers identified in section 622(a)(2)

of the Parentage Act shall not enjoy either parenting responsibilities or parenting time.

Subsection (f) provides the mechanism by which that consent, in the discretion of the mother,

may be permitted or barred.

¶ 38 Further, section 622 parentage proceedings are not proceedings like those under the

Adoption Act (750 ILCS 50/1 et seq. (West 2018)), the Juvenile Court Act of 1987 (705 ILCS

405/1-1 et seq. (West 2018)), or the Illinois Marriage and Dissolution of Marriage Act (750

ILCS 5/101 et seq. (West 2018)) in which custody determinations are guided by the overriding

principle of the best interest of the child. Notably, this matter was not joined with any other

permissible proceeding in which such determinations are required. See 750 ILCS 46/611(a)

(West 2018) (except as provided in subsection 611(b), a proceeding to adjudicate parentage

may be joined with another appropriate proceeding, such as for adoption or termination of

parental rights). Further, if under section 622, “in the best interest” were to present as an

overriding factor to consent, in cases where a mother is determined to be unfit, as is alleged

here, the offender father might be awarded parental privileges, despite his prior offending

conduct. Clearly, such a result would be in contravention of the Parentage Act. In any case,

had the legislature intended the mother’s consent under section 622 to be subject to a best

interest of the child analysis, nothing precluded it from saying so.

¶ 39 Petitioner points to no case which construes section 622(b) of the Act, and we are only

aware of one, Deaver v. Jordan, 2020 IL App (5th) 200084-U. 4 In Deaver, the circuit court

granted the father’s petition for parenting time. Id. ¶ 16. On appeal, the mother argued that the

court erroneously interpreted section 622 of the Parentage Act in determining that both she and

her adoptive mother had previously consented to the father having parenting time with the

child. Id. ¶ 22. A divided panel of the Fifth District Appellate Court affirmed the circuit court’s

ruling, finding that the plain language of section 622(b) allows for allocation of parental

responsibilities where the minor mother consents, the evidence supported a conclusion that she

had consented, and the best interest of the child would be served by allocating parental

responsibilities to the father as he had already established a relationship with the child. Id. ¶ 29.

The court held that a showing of prior consent was sufficient to nullify the applicability of

section 622. Id. The court further stated: “The plain language of 622(b) does not require a

mother’s continued or ongoing consent for each exercise of parental responsibility or each

exercise of parenting time by the father.” Id. The dissent, however, came to the opposite

conclusion. The dissent took the position that after finding that the father fit within the

definition of section 622(a)(2), the court had no authority to enter an order of parental

responsibilities “unless the minor mother is in agreement,” which she was not in this case, as

evidenced by the contentious legal dispute. (Emphasis in original.) Id. ¶¶ 38-39 (Barberis, J.,

4

This order was issued pursuant to Illinois Supreme Court Rule 23 (eff. Apr. 1, 2018) prior to

January 1, 2021. Therefore, the recent amendment to Rule 23(e)(1) is inapplicable as the Fifth District

did not intend for it to serve persuasive value. Even so, this court is not bound by even published rulings

from other districts, divisions, or panels. See O’Casek v. Children’s Home & Aid Society of Illinois,

229 Ill. 2d 421, 440 (2008).

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dissenting). The dissent rejected the majority’s conclusion that the father was permitted

parental responsibilities based on the mother’s prior consent. Id.

¶ 40 We believe that the dissent in Deaver reached the correct result. Here, respondent filed an

affirmative defense to the petition seeking parental responsibilities and parenting time. Even

assuming her prior consent, other than filing her affirmative defense to bar parenting time,

nothing more in the statute is contemplated and nothing more in the statute is required.

¶ 41 We are not unaware of the potential dangers to which petitioner alludes should a mother

be permitted to give and then withdraw consent. We trust that the legislature was also aware

of this possibility in enacting the statute. However, we believe that the parenting rights vested

exclusively in the mother strike the proper balance under the circumstances addressed by this

section of the Parentage Act. Further, as section 622(f) makes available the filing of an

affirmative petition, we believe that the likelihood of repeated withdrawals of consent is

diminished. We would also point out that it is no more likely that consent, once given, will be

withdrawn than it is that once given it would not be. In any case, given the objects of section

622, the possibility that a mother might change her mind is not reason either to graft on

exceptions or to ignore the plain language of the Parentage Act.

¶ 42 Additionally, the absence in section 622 of any procedural directives to the courts supports

a conclusion that the legislature did not intend a mother’s consent to be subject to complex and

a potentially protracted judicial determination. The legislature’s silence in this regard comports

with an interpretation that the mother’s consent is to be determined upon the filing of either an

affirmative petition or defense, as it would likely be a straightforward determination. We also

find it implausible that the legislature intended for the clause to operate on the basis of prior

consent. Notably, in the case of a mother, not yet of majority age, any alleged prior “consent”

would not be informed or knowing, as it is likely that she would lack knowledge of her legal

authority under this section to deny parental privileges to an offender father.

¶ 43 Finally, when viewing the plain language of the Parentage Act—a person qualifying under

subsection (a) shall not be allocated parental responsibilities without the consent of the

mother—the consent clause suggests a present tense. If the legislature had intended

nullification of the provision based on the mother’s prior consent, it would have used the past

tense. For example, the clause may have been worded instead as “unless the mother has

consented.” Because the clause is written in the present tense, it logically follows that consent

is to be determined based upon the mother’s filing of an affirmative petition—not by some

other means at some other time in the past.

¶ 44 We note as an aside that Illinois enacted section 622 around the time when there was a

nationwide effort to enact legislation allowing a parent to terminate the parental rights of a

person who fathered a child through rape. 5 This was in no small part due to Congress passing

5

Although several other states have statutes prohibiting a father whose child was conceived as a

result of sexual assault or nonconsensual sexual intercourse from enjoying parental privileges, none

appear identical to statute at issue. For instance, others may require express written consent from the

mother, require the court to conduct a best-interests analysis, or some combination of the two before

waiving application of the statute. Moreover, these statutes, just as ours, are relatively new and many

have not been subjected to judicial interpretation. See Anastasia Doherty, Choosing to Raise a Child

Conceived Through Rape: The Double-Injustice of Uneven State Protection, 39 Women’s Rts. L. Rep.

220, 314-56 (2018) (Tables 3 to 6).

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the Rape Survivor Child Custody Act to incentivize state legislation with federal funding. See

34 U.S.C. § 21301 (2018). It was against this backdrop that Illinois, and several other states,

enacted laws to provide agency for a victim-mother who has chosen to raise a child, conceived

out of rape, and to prevent a revictimization or “a second injustice in finding no legal protection

against custody or visitation being awarded to a rapist parent.” Anastasia Doherty, Choosing

to Raise a Child Conceived Through Rape: The Double-Injustice of Uneven State Protection,

39 Women’s Rts. L. Rep. 220, 224 (2018).

¶ 45 Here, our review of the record demonstrates that respondent not only made clear in her

pleadings that she does not currently consent to an allocation of parental responsibility to

petitioner but, additionally, during the hearing on the issue of parentage, she also testified that

she does not consent to him or his family members parenting D.S. Although the circuit court

did not expressly rule on respondent’s affirmative defense to the petition, as our review is

de novo, we do so here and find that, pursuant to subsection (b), petitioner is prohibited from

parental responsibilities and parenting time. Petitioner’s references to respondent’s past

behavior, police reports, and the safety plan are irrelevant in these proceedings. The only issue

is consent, and respondent having presented an affirmative defense, no amendment of

petitioner’s petition could alter that result.

¶ 46 We hold that section 622(a)(2) is applicable to petitioner and, pursuant to section 622(f),

respondent has presented an affirmative matter cognizable under section 2-619 of the Code.

Accordingly, the circuit court did not err in dismissing the petition with prejudice.

¶ 47 That said, having reviewed the record, it does not escape our notice that the minor in this

case may require, for her well-being, intervention from the appropriate state agencies charged

with ensuring the physical and emotional well-being of minors. The absence of a stable home

environment can have long-lasting negative effects on every aspect of a child’s development.

Here, we hold only that respondent has not consented to petitioner’s request for parental

responsibilities and parenting time for D.S. Nothing in this court’s opinion, however, should

be read to impede the activities of any appropriate state agencies in the discharge of their duties

on behalf of the minor child. Neither, by our holding, are either of the parties foreclosed from

the filing of any future petitions.

¶ 48 III. CONCLUSION

¶ 49 For the reasons stated, we affirm the judgment of the circuit court.

¶ 50 Affirmed.

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