James R.D. v. Maria Z. (In re Parentage Scarlett Z.-D.)

28 N.E.3d 776

In re Parentage of SCARLETT Z.-D., a Minor (James R.D., Appellee,

v. Maria Z., Appellant).

No. 117904.

Supreme Court of Illinois.

March 19, 2015.

David W. Schopp, of Aurora, for appellant.

Camilla B. Taylor, of Lambda Legal Defense & Education Fund, Inc., of Chicago, for appellee.

Robert F. Harris, Kass A. Plain and Mary Brigid Hayes, of the Office of the Cook County Public Guardian, of Chicago, for amicus curiae Cook County Public Guardian.

Winston & Strawn LLP (Samuel S. Park, of Chicago, and K. Joon Oh, of San Francisco, California), and John Knight, of Roger Baldwin Foundation of ACLU, Inc., of Chicago, for amici curiae American Civil Liberties Union et al.

Hugh S. Balsam and Andy J. Miller, of Locke Lord LLP, of Chicago, for amici curiae Family Institute at Northwestern University et al.

OPINION

Justice FREEMAN delivered the judgment of the court, with opinion.

¶ 1 Scarlett Z.-D. is the adopted daughter of respondent, Maria Z. Petitioner, James R.D. (Jim), filed a petition in the circuit court of Du Page County seeking a declaration of parentage, custody, visitation, and child support regarding Scarlett. Prior to trial, the circuit court dismissed Jim's claims brought under common law contract theories and, following trial, denied his claims brought under functional parent theories. A divided panel of the appellate court (2014 IL App (2d) 120266–B, 381 Ill.Dec. 729, 11 N.E.3d 360 ) ultimately affirmed the rejection of Jim's common law contract and functional parent theories, but vacated in part the denial of Jim's claims and remanded for further fact finding with reference to the doctrine of equitable adoption as recognized in DeHart v. DeHart, 2013 IL 114137, 369 Ill.Dec. 136, 986 N.E.2d 85.

¶ 2 This court allowed Maria's petition for leave to appeal. Ill. S.Ct. R. 315 (eff. Feb. 26, 2010). We hold that the doctrine of equitable adoption as recognized in DeHart does not apply to child custody proceedings. Accordingly, we now affirm the judgment of the appellate court in part and reverse in part.

¶ 3 I. BACKGROUND

¶ 4 In 1999, Maria and Jim met, fell in love, and began living together as a couple in Elmhurst. In 2000 or 2001, they became engaged to be married. Maria was born in Slovakia, immigrated to the United States, and frequently returned to Slovakia to visit family. During one such visit in early 2003, Maria met Scarlett, a 3 ½-year-old orphan. Born in June 1999, Scarlett was placed in an orphanage when her biological mother lost her parental rights.¹

¶ 5 Through several telephone conversations, Maria and Jim decided to bring Scarlett into their lives. Under Slovakian law, Jim was not permitted to adopt Scarlett because he was neither a Slovakian national nor married to Maria. Accordingly, Maria and Jim decided that Maria would adopt Scarlett. Maria commenced the year-long adoption process and lived in Slovakia during that time. Jim financially supported the process, traveled there approximately five times, and participated in a psychological evaluation. In 2004, Maria adopted Scarlett under Slovakian law, and the three of them returned to the United States.

¶ 6 The circuit court found that Maria, Jim, and Scarlett lived together “as an intact family unit as if they were bound legally.” Maria and Jim gave Scarlett the hyphenated form of their last names. Jim was the “father figure” to Scarlett, who referred to Jim as “daddy.” Jim's name appears in Scarlett's school records as Scarlett's father. Jim paid all family expenses and provided economic support for Scarlett. In June 2006, he established a $500,000 irrevocable trust for Scarlett. The court found that Scarlett “learned English and clearly came a long way over this time period under the watchful eyes and good parenting from both Jim and Maria.”

¶ 7 However, Maria and Jim never married. Jim did not acquire legal recognition as Scarlett's father by domesticating the Slovakian adoption in Illinois, by seeking to adopt Scarlett pursuant to Illinois law, or by other statutory means.

¶ 8 The relationship between Maria and Jim deteriorated. In August 2008, Maria moved out of Jim's home, taking Scarlett. Later that month, Jim filed a petition for declaration of parental rights. In May 2009, Jim filed his second amended petition, which framed the instant proceedings. In the six-count petition, Jim sought: a declaration of parentage and an order granting him and Maria joint legal and physical custody of Scarlett, or alternatively, granting him primary custody with reasonable visitation for Maria (count I), and an equitable division of child support (count II). Jim also alleged several common law contract claims. Jim alleged that Maria breached their oral agreement to be equal parents to Scarlett (count III); he was therefore entitled to relief based on promissory estoppel (count IV); alternatively, in the absence of an express agreement, Maria breached their implied contract in fact (count V); or a contract implied at law (count VI).

¶ 9 Maria filed motions to dismiss pursuant to sections 2–615 and 2–619 of the Code of Civil Procedure (735 ILCS 5/2–615, 2–619 (West 2012)), contending that Jim lacked standing to commence a custody proceeding. The circuit court ultimately dismissed Jim's common law claims (counts III through VI) pursuant to section 2–615.

¶ 10 The case proceeded to trial. In count I, Jim alleged that he was Scarlett's de facto, equitable, and psychological parent, and that he stood in loco parentis to Scarlett. Maria filed a response, in which she raised the affirmative defense of standing. At the close of the trial, the court concluded that Jim lacked standing and was not subject to paying child support. Accordingly, the court denied relief under counts I and II.

¶ 11 On appeal, the appellate court initially affirmed. In re Parentage of Scarlett Z.–D., 2012 IL App (2d) 120266, 363 Ill.Dec. 729, 975 N.E.2d 755. Jim filed a petition for leave to appeal with this court. We denied the petition, but entered a supervisory order directing the appellate court to vacate its decision and reconsider the appeal in light of DeHart v. DeHart, 2013 IL 114137, 369 Ill.Dec. 136, 986 N.E.2d 85, to determine if a different result was warranted. In re Parentage of Scarlett Z.–D., 372 Ill.Dec. 464, 992 N.E.2d 3 (Ill.2013) (supervisory order).

¶ 12 On reconsideration, a divided panel of the appellate court reversed the circuit court's denial of relief under counts I and II. The appellate court rejected Jim's assertion of standing based on various functional parent theories. 2014 IL App (2d) 120266–B, ¶¶ 33–50, 381 Ill.Dec. 729, 11 N.E.3d 360. However, the appellate court held that the equitable adoption doctrine as recognized in DeHart “might present a potentially viable theory of standing for Jim.” Id. ¶ 64. The appellate court remanded the case to the circuit court with directions that the court make factual findings, with reference to DeHart, as to whether Jim could establish standing. Id. ¶¶ 65–68. Also, the appellate court again affirmed the dismissal of Jim's common law contract claims. Id. ¶¶ 74–76.²

¶ 13 Maria now appeals to this court. We granted the Family Institute at Northwestern University, Chicago Appleseed Fund for Justice, Family Equality Council and National Association of Social Workers, as well as the American Civil Liberties Union of Illinois and the National Center for Lesbian Rights, leave to submit amici curiae briefs in support of Jim. We also granted the Cook County public guardian leave to submit an amicus curiae brief. Ill. S.Ct. R. 345 (eff. Sept. 20, 2010). Additional pertinent background will be discussed in the context of our analysis.

¶ 14 II. ANALYSIS

¶ 15 Before this court, Maria assigns error to the appellate court's holding that the equitable adoption doctrine as recognized in DeHart might provide Jim with standing to seek custody of Scarlett. On cross-appeal, Jim assigns error to the appellate court's rejection of his claims. We address each of their respective contentions where appropriate in our analysis.

¶ 16 A. Forfeiture of Objections to Standing

¶ 17 Jim first contends that Maria forfeited the opportunity to contest Jim's standing.³ Maria filed a motion to dismiss Jim's petition pursuant to section 2–615 of the Code of Civil Procedure (735 ILCS 5/2–615 (West 2012) ). She alleged that Jim's petition failed to state a cause of action because it did not address the threshold question of standing under either the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/101 (West 2012) ) or the Illinois Parentage Act of 1984 (750 ILCS 45/1 (West 2012) ). Jim filed a response, arguing that Maria had forfeited her standing argument because a section 2–615 motion was not the proper vehicle to raise the issue of standing.

¶ 18 The circuit court allowed Maria to file a memorandum in support of her section 2–615 motion if she so desired. Within the time allowed for that memorandum, Maria filed a section 2–619 motion to dismiss (735 ILCS 5/2–619 (West 2012) ), asserting lack of standing under the Marriage Act. Jim moved to dismiss Maria's motion. He argued that Maria had forfeited the issue of standing by improperly raising it in a section 2–615 motion to dismiss. The circuit court found that Maria did not forfeit the issue of standing, and offered Jim additional time to submit affidavits and file a response to Maria's section 2–619 motion. Jim accepted the offer. The circuit court ultimately denied Maria's section 2–619 motion to dismiss regarding all counts of Jim's complaint. The court granted Maria's section 2–615 motion to dismiss regarding counts III through VI, but denied the motion regarding counts I and II.

¶ 19 Repeating his argument before the appellate court, Jim argues that Maria forfeited the issue of his standing by failing to file a “timely” section 2–619 motion to dismiss. The appellate court correctly rejected this contention. 2014 IL App (2d) 120266–B, ¶¶ 22–24, 381 Ill.Dec. 729, 11 N.E.3d 360...