In re J.M.

226 N.E.3d 83

2023 IL App (4th) 220537

IN RE J.M., a Minor-Appellant

(The People of the State of Illinois, Petitioner-Appellee, v. Jessa R. and Skyllar M., Respondents-Appellees).

NO. 4-22-0537

Appellate Court of Illinois, Fourth District.

Filed February 17, 2023

Appeal from the Circuit Court of Tazewell County, No. 21JA34, Honorable David A. Brown, Judge Presiding.

Peter J. Lynch, of Hasselberg, Rock, Bell & Kuppler LLP, of Peoria, for appellant.

Stewart J. Umholtz, State’s Attorney, of Pekin (Patrick Delfino, Edward R. Psenicka, and Pamela S. Wells, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

No brief filed for other appellees.

OPINION

JUSTICE ZENOFF delivered the judgment of the court, with opinion.

¶ 1 During proceedings to adjudicate the minor, J.M., neglected, J.M.’s guardian ad litem (GAL) filed a "Petition to Declare the Non-Existence of a Parent-Child Relationship" (disestablishment petition) pursuant to section 204(a)(1) of the Illinois Parentage Act of 2015 (Act) (750 ILCS 46/204(a)(1) (West 2020)). In this petition, the GAL sought to rebut the presumption that respondent, Skyllar M., was J.M.’s "parent." Skyllar was married to another woman, Jessa R., who is the biological mother of J.M. The trial court denied the petition, and the GAL appeals. The GAL contends that the court’s prior adjudication of J.M.’s biological father as one of J.M.’s legal parents precluded the finding that Skyllar M. was his parent. We affirm.

¶ 2 I. BACKGROUND

¶ 3 A. Jessa and Skyllar

¶ 4 Prior to Jessa’s marriage to Skyllar in February 2020, Jessa had a child, K.P. In 2019, the Illinois Department of Children and Family Services (DCFS) took custody of K.P. due to bruising on "several parts" of K.P.’s body that was inflicted by "other than accidental means." (Skyllar later admitted to DCFS that she abused K.P.) After J.M. was born on January 28, 2021, DCFS took him into protective custody. On February 2, 2021, DCFS sought temporary custody and guardianship of J.M. At that temporary-custody hearing, Skyllar informed the court that J.M.’s birth resulted through artificial insemination. Skyllar also asserted she was J.M.’s "presumed parent" because she was legally married to Jessa. (Section 204(a)(1) of the Act (750 ILCS 46/204(a)(1) (West 2020)) provides that parentage is presumed if a "person" and the mother were married when the child was born.) On March 10, 2021, Jessa and Skyllar divorced, although DCFS reported that they remained together romantically.

¶ 5 B. Michael S.

¶ 6 At the temporary-custody hearing, Jessa named Michael S. as J.M.’s biological father, which DNA testing later confirmed. On January 19, 2022, over Skyllar’s objection, the court entered a written order finding Michael to be J.M.’s "biological and legal" father. Skyllar did not appeal that order. (The appellate court was split on the issue of whether a parentage order by itself is appealable. See our discussion infra ¶ 17.) On April 13, 2022, Michael surrendered his parental rights.

¶ 7 C. Proceedings on the Disestablishment Petition

¶ 8 On January 13, 2022, the GAL filed the disestablishment petition based on the DNA results confirming that Michael was J.M.’s biological father. On April 12, 2022, Skyllar filed an answer asserting (1) she was J.M.’s presumed parent pursuant to the Act because she was married to Jessa when J.M. was born, (2) the GAL was statutorily prohibited from using DNA findings to challenge Skyllar’s status as a parent, (3) Michael was seeking to surren- der his parental rights, and (4) J.M.’s best interests necessitated two parents. In reply, the GAL asserted, inter alia, that the trial court had found and incorporated into an order, since the filing of the disestablishment petition, that Michael was J.M.’s biological and legal parent. The GAL argued that a child can have only two parents.

¶ 9 At the hearing on the disestablishment petition, Skyllar’s attorney made a proffer that, if Skyllar were called to testify, she would testify as follows:

"[Skyllar] was legally married to [Jessa] and *** they decided they wanted to have a child, and *** they got in contact with a friend, [Michael]. [Michael] came to their residence. [Michael] provided a sample of his semen in a cup that was gathered by [Skyllar] and taken into a separate room [where] [Skyllar] implanted it in [Jessa] to conceive a child. There was no sex between [Jessa] and [Michael]. There was no intention between [sic] any of the three parties that [Michael] was to be a parent. All intention at that point *** between this legally married couple was that they would conceive a child together."

The parties accepted this proffer as evidence. Skyllar then argued that "this is *** a case of artificial insemination." Article 7 of the Act governs assisted reproduction and is hereinafter referred to as the "assisted-reproduction statute." See 750 ILCS 46/art. 7 (West 2020). Under that statute, Skyllar maintained that Michael, as a "donor," was not legally considered to be a parent.

¶ 10 On May 24, 2022, the trial court entered its written order agreeing with Skyllar. The court found (1) Jessa’s pregnancy occurred through "assisted reproduction"; (2) Michael was a "donor"; (3) there was no written legal agreement among Michael, Skyllar, and Jessa; (4) Skyllar was an "intended parent"; and (5) the court must determine parentage based on the parties’ intentions at the time of Michael’s donation. The court determined that "[u]nder the unique facts and circumstances presented by this case," Jessa and Skyllar "intended to create a child," and Michael "did not intend some type of parent-child relationship with the child." Accordingly, the court found the disestablishment petition "misplaced." The court opined that granting the petition would "undermine the purpose and intent of the legislature in creating the assisted reproduction" provisions of the Act and that every assisted reproduction would "potentially be at risk" of a declaration of nonparentage if the petition was granted.

¶ 11 This appeal followed.

¶ 12 II. ANALYSIS

¶ 13 Only the State (which was not a party to the disestablishment petition but is a party to the neglect proceedings) filed an appellee’s brief. After this case was designated ready for decision, we discovered that the GAL inadvertently failed to give Skyllar and Jessa proper notice of the appellate proceedings. Accordingly, we ordered the GAL to serve notice on both parties, and then we entered a briefing schedule. Because neither Skyllar nor Jessa filed appellee’s briefs after having received proper notice, and because the State agrees with the GAL’s arguments, we will treat this appeal according to the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 345 N.E.2d 493 (1976). In Talandis, our supreme court provided three distinct, discretionary options a reviewing court has in the absence of an appellee’s brief: (1) serve as an advocate for the appellee and decide the case when justice requires, (2) decide the merits of the appeal if the record is simple and the issues can be easily decided without the aid of an appellee’s brief, or (3) reverse the trial court when the appellant’s brief demonstrates prima facie reversible error supported by the record. Thomas v. Koe, 395 Ill. App. 3d 570, 572-73, 338 Ill.Dec. 567, 924 N.E.2d 1093 (2009). Here, the record is simple, and we can decide the case without the aid of additional appellees’ briefs.

¶ 14 Preliminarily, we address the timeliness of our decision. Although the subject of this appeal is the trial court’s order denying the GAL’s disestablishment petition, both the GAL and the State assert that this matter is accelerated pursuant to Illinois Supreme Court Rule 311(a) (eff. July 1, 2018) because the juvenile neglect proceeding involves child custody. Rule 311(a) provides, in pertinent part, that except for "good cause shown," the appellate court shall issue its decision within 150 days following the filing of the notice of appeal. Ill. S. Ct. R. 311(a) (eff. July 1, 2018). Here—if Rule 311(a) applies—the 150-day period to issue our decision expired on November 21, 2022. However, on November 4, 2022, this court ordered the GAL to file an amended docketing statement because the original docketing statement failed to advise all parties to the proceedings below of the appeal. The GAL filed an amended docketing statement on November 4, 2022. However, this court struck the amended docketing statement as noncompliant and ordered the GAL to file a second amended docketing statement. The second amended docketing statement was filed on November 10, 2022. This court then entered a briefing schedule. Briefing was completed on December 15, 2022, and oral argument was held on January 25, 2023. Thus, if Rule 311(a) is applicable, we find good cause for issuing our decision after the 150-day deadline.

¶ 15 The GAL and the State both contend that the trial court’s finding that Michael was J.M.’s biological and legal father overcame the rebuttable presumption that Skyllar was J.M.’s parent. At oral argument, this court raised the issue of the State’s standing, as the State was not a party to the disestablishment petition. The State argued that the trial court, without objection, allowed it to participate in the arguments below. The State then cited, with leave of court, In re N.C., 2014 IL 116532, 382 Ill.Dec. 23, 12 N.E.3d 23, as additional authority. In N.C., our supreme court held that the State has standing to raise parentage issues in a neglect proceeding in the best interests of the minor. N.C., 2014 IL 116532, ¶ 47, 382 Ill.Dec. 23, 12 N.E.3d 23.

¶ 16 A. Jurisdiction

[1]¶ 17 Although neither party raises the issue, we have an independent duty to examine our jurisdiction. In re Marriage of Gaudio, 368 Ill. App. 3d 153, 156, 306 Ill.Dec. 239, 857 N.E.2d 332 (2006). The trial court denied the GAL’s disestablishment petition, and the GAL filed...