2021 IL App (1st) 192257
Ill. App. Ct.2021Background
- Child D.S. was born December 12, 2017; mother Aura C.-K. was 16 at conception; petitioner Colton S. is alleged father and was older.
- Colton filed a parentage petition (Sept. 12, 2018) seeking adjudication of paternity and parental responsibilities.
- Aura filed a motion under §622 of the Illinois Parentage Act (and as an affirmative defense) arguing allocation of parental responsibilities is prohibited because D.S. was conceived by nonconsensual sexual penetration (victim’s minority).
- The trial court held an evidentiary hearing, found by clear and convincing evidence that conception resulted from nonconsensual sexual penetration (presumed by law because of mother’s age), and dismissed petitioner’s parentage petition with prejudice.
- On appeal petitioner argued the court failed to decide whether the mother’s prior consent to parenting defeated §622(b); the appellate court affirmed, holding §622(a)(2) applied and the mother’s present withholding of consent barred allocation of parental responsibilities.
Issues
| Issue | Petitioner (Colton) Argument | Respondent (Aura) Argument | Held |
|---|---|---|---|
| Proper procedural vehicle for dismissal (2-615 v. 2-619) | Dismissal under 2-615 improper — facts could be proven to defeat dismissal | Motion is an affirmative defense under §622(f) and properly construed as a 2-619 motion | Court treated the motion as 2-619, held evidentiary hearing, applied 2-619 standard |
| Applicability of §622(a)(2): was conception result of nonconsensual sexual penetration? | Implicitly argued facts about relationship/consent to parenting; did not successfully dispute statutory presumption based on age | Respondent: statutory presumption applies because she was a minor; nonconsensual sexual penetration found | Court found clear and convincing evidence that §622(a)(2) applies (age presumption) |
| Effect of mother’s prior consent to parenting; role of best‑interests analysis | Prior consent (and DCFS safety plan/practice) should prevent §622 from barring parenting; best interests of child should control | Mother may withhold consent; §622 vests present authority in mother to permit or bar parenting without a best‑interest inquiry | Held that §622(b) prohibits allocation unless the mother presently consents; prior consent does not nullify the statutory bar and best‑interest analysis is not a substitute under §622 |
Key Cases Cited
- First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.2d 128 (1976) (appellant retains burden despite appellee failing to file brief)
- Van Meter v. Darien Park District, 207 Ill.2d 359 (2003) (purpose of a section 2-619 motion is to dispose of issues of law and easily proved facts)
- Unzicker v. Kraft Food Ingredients Corp., 203 Ill.2d 64 (2003) (statutory interpretation reviewed de novo)
- Kheirkhahvash v. Baniassadi, 407 Ill. App.3d 171 (2011) (pleadings and supporting documents construed in favor of nonmoving party on 2-619)
- In re Estate of Poole, 207 Ill.2d 393 (2003) (purpose of Parentage Act is to establish parent–child relationships)
- King v. City of Chicago, 324 Ill. App.3d 856 (2001) (appellate court may affirm on any ground supported by the record)
- People v. Lloyd, 2013 IL 113510 (2013) (Illinois’s statutory age-of-consent framework; relevant to presumption of nonconsent by minors)