In re T.M.H.
2019 IL App (2d) 190614
Ill. App. Ct.2021Background
- Child T.M.H. born Sept. 9, 2011 to Tiffany S. and Paul H.; parents never married; Paul was named on birth certificate and filed a parentage action in 2012.
- Paul was incarcerated for ~2 years; a 2014 Will County parenting order reserved parenting time (due to incarceration) and barred contact with Tiffany; Paul later sought reinstatement of parenting time after release.
- Tiffany married Arthur S.; Tiffany and Arthur filed a petition for related adoption of T.M.H. on July 9, 2018 in Du Page County; a guardian ad litem was appointed in the adoption case.
- Tiffany and Arthur filed a verified petition to enjoin visitation alleging uncontroverted facts: Paul previously took the child and concealed his whereabouts, made threats (including abduction and violence), admitted carrying a knife/possible gun, pled guilty to harassing a witness (Tiffany), and was subject to probation conditions prohibiting contact with Tiffany.
- On July 1, 2019 the adoption court granted a preliminary injunction enjoining Paul from any contact or visitation with T.M.H. pending resolution of the adoption petition; Paul timely appealed.
Issues
| Issue | Plaintiff's Argument (Tiffany/Arthur) | Defendant's Argument (Paul) | Held |
|---|---|---|---|
| Was a temporary restraining order required before issuing a preliminary injunction? | Not required; relief requested directly. | Trial court erred by issuing a preliminary injunction without first entering a TRO. | No requirement in statute; court did not abuse discretion. |
| Was an evidentiary hearing required before issuing the preliminary injunction? | No hearing needed because petition was verified and uncontroverted. | An evidentiary hearing was required before enjoining visitation. | No hearing required where defendant filed no responsive pleading; allegations stood uncontroverted. |
| Was the preliminary injunction proper under adoption/parentage principles (Scraggs / J.S.A.)? | Injunction necessary to protect child given threats, past abduction risk, criminal convictions, and probation no-contact condition. | Injunction unjustly abrogates biological-father rights and should be dissolved; adoption stay required pending parentage. | Court balanced child’s best interests; uncontroverted allegations justified injunction; no abuse of discretion. |
| Did the adoption court lack jurisdiction or should the parentage court resolve visitation/stay the adoption? | Adoption court can act to protect the child in adoption proceeding; prioritization of adoption setting permissible. | Parentage court should decide visitation and the adoption should be stayed to protect father’s rights. | Adoption court had authority to issue injunction; argument forfeited below and lacks merit. |
Key Cases Cited
- Callis, Papa, Jackstadt & Halloran, P.C. v. Norfolk & Western Ry. Co., 195 Ill. 2d 356 (Ill. 2001) (sets elements and standard of review for preliminary injunctions)
- In re Adoption of Scraggs, 125 Ill. 2d 382 (Ill. 1988) (natural father’s rights protected but injunctions may be justified in adoption cases to protect child’s best interests)
- J.S.A. v. M.H., 384 Ill. App. 3d 998 (Ill. App. 2008) (stay of adoption may be necessary when parentage proceedings could affect parental rights)
- Passon v. TCR, Inc., 242 Ill. App. 3d 259 (Ill. App. 1993) (evidentiary hearing normally required only when verified answer denies material allegations)
- Russel v. Howe, 293 Ill. App. 3d 293 (Ill. App. 1997) (where complaint’s essential factual allegations are uncontroverted, no oral testimony is necessary)
- Brooks v. La Salle National Bank, 11 Ill. App. 3d 791 (Ill. App. 1973) (order stating injunctive relief was granted for reasons stated on the record satisfies statutory requirement)