In re Parentage of A.M.

2020 IL App (5th) 190441-U

• Court: Appellate Court of Illinois
• Decided: May 7, 2020
• Docket: 5-19-0441
• Status: Unpublished

Opinion

2020 IL App (5th) 190441-U NOTICE NOTICE Decision filed 05/07/20. The This order was filed under text of this decision may be NO. 5-19-0441 Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Petition for by any party except in the Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

In re PARENTAGE OF A.M. and D.M., Minors ) Appeal from the ) Circuit Court of (Drevon Moore, ) Jackson County. ) Petitioner-Appellee, ) ) v. ) No. 19-F-21 ) Stephanie Fruits, ) ) Respondent ) ) Honorable (Ruby McRoy and Christoper McRoy, Intervenors- ) Michael A. Fiello, Appellants)). ) Judge, presiding. ______________________________________________________________________________

JUSTICE BARBERIS delivered the judgment of the court. Justices Cates and Boie concurred in the judgment.

ORDER

¶1 Held: Appeal dismissed for lack of appellate jurisdiction where the circuit court’s denial of intervenors’ motion to dismiss was not a final and appealable order.

¶2 Ruby and Christopher McRoy (McRoys), intervenors-appellants and guardians of A.M.

and D.M., appeal from the circuit court’s order denying their motion to dismiss the parentage

petition filed by Drevon Moore, petitioner-appellee, and the alleged biological father of A.M.

and D.M., pursuant to the Illinois Parentage Act of 2015 (Act) (750 ILCS 46/101 et seq. (West

2018)). On appeal, the McRoys argue that the court erred in finding the two-year statute of

1 limitations under the Act (750 ILCS 46/608(a) (West 2018)) inapplicable. For the following

reasons, we dismiss for lack of appellate jurisdiction.

¶3 I. Background

¶4 At the outset, we note that this appeal was placed on an accelerated docket schedule

under the provisions of Illinois Supreme Court Rule 311(a) (eff. July 1, 2018), with a decision

due by March 20, 2020. However, our decision is being issued beyond this date for good cause,

as motions for extensions of time resulted in delays in the corresponding briefing schedule. See

Ill. S. Ct. R. 311(a)(5) (eff. July 1, 2018). We now issue our disposition.

¶5 On November 21, 2016, Stephanie Fruits gave birth to twins, A.M. and D.M. Stephanie

and Richard Fruits were a married couple at the time of the children’s births.

¶6 On August 15, 2018, the McRoys filed an emergency petition for temporary and plenary

guardianship of the children, pursuant to the Probate Act of 1975 (Probate Act) (755 ILCS 5/11-

8(a) (West 2018)), and were appointed plenary guardians on November 29, 2018. The plenary

order stated, inter alia, that (1) the McRoys, Stephanie’s paternal aunt and uncle, have been the

children’s primary caregivers since September 9, 2017; (2) “[o]n February 12, 2018, [Stephanie]

executed notarized Consents for Guardianship appointing [the McRoys] as guardians of the

children”; (3) “[Richard] is the presumed father, although not the biological father, of the minor

children ***”; (4) no other persons alleging to be the biological father had filed any pleadings or

sought to intervene in the case, including Drevon Moore; (5) “[t]he child’s [sic] presumed father,

[Richard], is unwilling to care for the children and has executed a Consent for Guardianship”;

and (6) the parents of the minor children are unable and unwilling to care for and make daily

child care decisions on behalf of the minor children.

2 ¶7 On February 4, 2019, approximately 26 months after the children’s births, Drevon filed a

petition to establish parental relationship, parenting responsibilities, and parenting time. In

support of the petition, Drevon attached two exhibits, a voluntary acknowledgment of paternity,

dated January 30, 2019, and a DNA test result showing a 99.999999998% probability of

paternity, dated August 20, 2018.

¶8 On March 26, 2019, the McRoys filed a petition to intervene in the parentage case, a

petition for adoption of the children, and a motion to consolidate the guardianship, parentage,

and adoption cases. Drevon subsequently agreed to the McRoys’ petition to intervene but

objected to the consolidation of the cases prior to the circuit court entering an order of paternity.

¶9 On May 23, 2019, the McRoys filed a combined motion to strike and dismiss, requesting

that the circuit court strike Drevon’s exhibits—the acknowledgment of paternity and DNA test

results—and dismiss the parentage action. In support, the McRoys asserted that the

acknowledgment of paternity was insufficient and void under the Act (750 ILCS 46/302 et seq.

(West 2018)), because it was not signed by the children’s mother, failed to state that the children

had a presumed parent, and did not acknowledge Richard as the presumed father. Next, the

McRoys asserted that the DNA test results were insufficient under the Act (750 ILCS 46/614(a)

(West 2018)) because the testing was not performed with Richard’s consent, pursuant to court

order, and did not exclude Richard as the children’s biological father. The McRoys also asserted

that the results were insufficient under the Act (750 ILCS 46/403(a) (West 2018)) because the

results were not supported by a chain of custody affidavit or certificate. Lastly, the McRoys

asserted that the parentage action had been filed three months after the two-year statute of

limitations had expired. 750 ILCS 46/608(a) (West 2016).

3 ¶ 10 On July 19, 2019, after the parties filed several corresponding pleadings and

memorandums, the circuit court held a hearing on the McRoys’ motion to strike and dismiss.

During the hearing, the McRoys submitted a copy of a marriage certificate to demonstrate that

Richard and Stephanie were married at the time of the children’s births, thereby establishing

Richard as the children’s presumed father. The McRoys also submitted an affidavit from

Stephanie, stating that she had a prior sexual relationship with Drevon and, while pregnant, had

informed Drevon that he was possibly the children’s father. Drevon, the only witness, testified

that Stephanie had informed him, prior to the children’s births, that “[i]t might be a possibility”

that he was the father. Drevon also testified that he was at the hospital at the time of the

children’s births on November 21, 2016, but Richard was not present. Following argument by

both parties, the court took the matter under advisement.

¶ 11 On July 25, 2019, the circuit court entered an order granting the motion to strike, finding

both exhibits deficient, but denying the motion to dismiss. In denying the motion to dismiss, the

court found that Richard was the presumed father of the children from their births until

November 29, 2018, the date the guardianship court made a finding that Richard was not the

biological father of the children. The court also expressed that “[o]nce the [guardianship court]

made that finding[,] there was no longer a presumed father.” Thus, the court ruled that the two-

year statute of limitations was inapplicable, and denied the motion to dismiss.

¶ 12 On August 21, 2019, the McRoys filed a motion to reconsider the denial of the motion to

dismiss, which was subsequently denied on September 26, 2019. The McRoys appealed.

¶ 13 II. Analysis

¶ 14 On appeal, the McRoys assert that the two-year statute of limitations bars Drevon’s

parentage action where, contrary to the circuit court’s determination, the earlier guardianship

4 order did not “disestablish” Richard as a presumed father. Therefore, the McRoys argue that the

court erred in denying the motion to dismiss. In contrast, while Drevon readily admits that the

guardianship proceeding was not intended “for disestablishment purposes,” he argues the

proceeding allowed for fact finding by which the court was able to find “a rebuttal of a

presumption of parentage.”

¶ 15 Although the parties do not challenge our jurisdiction to review the circuit court’s

judgment, before reaching the merits of this case, we have a duty to consider our appellate

jurisdiction sua sponte. See In re Marriage of Mackin, 391 Ill. App. 3d 518, 519 (2009)

(appellate courts have a duty to consider, sua sponte, jurisdiction over an appeal and to dismiss

the appeal if jurisdiction is lacking). We review the question of our appellate jurisdiction

de novo. In re Marriage of Padilla, 2017 IL App (1st) 170215, ¶ 13.

¶ 16 Only final judgments or orders are appealable as of right unless the particular order falls

within one of the specified exceptions enumerated by Illinois Supreme Court rules governing

interlocutory appeals as of right. Inland Commercial Property Management, Inc. v. HOB I

Holding Corp., 2015 IL App (1st) 141051, ¶ 17; Mund v. Brown, 393 Ill. App. 3d 994, 996

(2009). A final order is an order that either terminates the litigation between the parties on the

merits or disposes of the rights of the parties in regard to the entire controversy or some definite

part thereof. Cohen v. Sterling Nursing Home, Inc., 57 Ill. App. 3d 162, 163 (1978). Courts have

long held that “[a]n order denying a motion to dismiss, like the order at issue in this case,

generally is not a final appealable judgment, as it does not conclusively determine the parties’

rights or interfere with the continuation of the proceedings.” In re Estate of Cerami, 2018 IL App

(1st) 172073, ¶ 34. Rather, such an order is merely an interlocutory order which does not finally

dispose of the proceeding in such a way as to give the appellate court jurisdiction. See George F.

5 Mueller & Sons, Inc. v. Daly, 124 Ill. App. 2d 265, 267 (1970) (“The denial of a motion to strike

or dismiss, of itself, is not a final and appealable order within the purview of the Civil Practice

Act ***.”).

¶ 17 The McRoys, nevertheless, maintain that our jurisdiction lies under one of the exceptions

enumerated by Illinois Supreme Court Rule 304 (eff. Mar. 8, 2016), which governs “Appeals

from Final Judgments that do not Dispose of an Entire Proceeding.” (Emphasis added.) First, the

McRoys assert that our jurisdiction lies under Supreme Court Rule 304(b)(1) (eff. Mar. 8, 2016),

which states that an immediate appeal may be taken from “[a] judgment or order entered in the

administration of an estate, guardianship, or similar proceeding which finally determines a right

or status of a party.” In support, the McRoys argue that the circuit court interpreted the previous

guardianship order as terminating Richard’s status as a presumed father of the children; thus, this

court has jurisdiction to review the claimed error. We disagree.

¶ 18 Here, the denial order was not entered “in the administration of an estate, guardianship,

or similar proceeding,” as required by Rule 304(b)(1), but rather in a separate paternity action.

Accordingly, we will not broaden Rule 304(b)(1) to encompass circuit court orders entered in a

paternity action that deny a motion to dismiss, a nonfinal order, simply because the court

construed a previous guardianship order in rendering a decision. See Eyster v. Conrad, 2020 IL

App (5th) 180261, ¶ 24 (when interpreting a supreme court rule, the “plain and ordinary

meaning” of its language is the best indicator of the drafters’ intent, and, where the language is

clear and unambiguous, we apply the language used without further aids of construction). Even

assuming arguendo that the paternity action constituted a “similar proceeding” under Rule

304(b)(1), the order did not finally determine a right or status of either party. That is, the

resolution of the children’s paternity, Drevon’s petition claiming that he is the children’s

6 biological father, and the McRoys’ status as the children’s guardians, remain unaffected. Simply

put, the order does not permanently resolve any of the pertinent matters pending in the case.

Thus, the court’s order does fall within the exception enumerated in Rule 304(b)(1).

¶ 19 The McRoys next argue that our jurisdiction lies under Illinois Supreme Court Rule

304(b)(6) (eff. Mar. 8, 2016), which states that an immediate appeal may be taken from “[a]

custody or allocation of parental responsibilities judgment or modification of such judgment

entered pursuant to the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101

et seq.) or [the Act] (750 ILCS 46/101 et seq.).” In support, the McRoys argue that the circuit

court effectively terminated Richard’s custody rights in finding that the previous guardianship

order terminated Richard’s status as the children’s presumed father. We find this argument

meritless.

¶ 20 Here, the record demonstrates, and the parties do not dispute, that the circuit court

previously granted the McRoys physical custody of the children, with the consent of Stephanie

and Richard, in the guardianship proceedings, pursuant to the Probate Act (755 ILCS 5/11-8(a)

(West 2018)). Nothing contained in the court’s order denying the McRoys’ motion to dismiss in

the present paternity case, a separate action governed by the Act (750 ILCS 46/101 et seq. (West

2018)), could be reasonably viewed as a custody order or a modification of such order in the

prior guardianship case, as required by Rule 304(b)(6). The previous custody and guardianship

provisions, as provided in the guardianship order, remain unchanged. Thus, the court’s order

does not fall within the exception enumerated in Rule 304(b)(6).

¶ 21 In light of the foregoing, we find that this court lacks jurisdiction to review a challenge to

the order denying the motion to dismiss. Accordingly, we dismiss this appeal. In dismissing this

appeal, we express no opinion as to the merits of the issues presented.

7 ¶ 22 III. Conclusion

¶ 23 Based on the foregoing, we dismiss this appeal for lack of appellate jurisdiction where

the circuit court’s denial of the motion to dismiss is not a final and appealable order or otherwise

permitted under the Illinois Supreme Court rules.

¶ 24 Appeal dismissed.