Department of Public Aid ex rel Gagnon-Dix v. Gagnon

NO. 4-95-0623

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE ILLINOIS DEPARTMENT OF PUBLIC AID, ) Appeal from
ex rel. KILEY GAGNON-DIX, a Minor, by ) Circuit Court of
DEBRA DIX, ) Sangamon County
Petitioner, ) No. 87F110
DEBRA DIX, )
Petitioner-Appellant, )
v. )
CHARLES GAGNON, ) Honorable
Respondent-Appellee. ) George H. Ray,
) Judge Presiding.
_______________________________________________________________



JUSTICE COOK delivered the opinion of the court:

In March 1994, the Illinois Department of Public Aid
(Department) filed a petition to determine paternity on behalf of
Kiley Gagnon-Dix, a minor, by Debra Dix, her mother. Paternity
was subsequently established by a blood test. In January 1995,
respondent Charles Gagnon admitted paternity, and in February
1995, he filed a petition for visitation, which was granted by
the trial court in June 1995. Later that month, petitioner Debra
Dix moved to reopen, stay visitation, and appoint a guardian ad
litem (GAL). The trial court granted the motions. A GAL was ap-
pointed and interviewed Kiley, Dix, and Gagnon. After consid-
ering the GAL's report, the trial court again granted respondent
visitation. Petitioner Dix appeals, maintaining the trial
court's ruling was against the manifest weight of the evidence
and the court erred in not appointing a GAL at the outset of the
case. Her motion for an emergency stay was denied. The Depart-ment was involved in trial court proceedings to determine pater-
nity and establish child support but is not party to this appeal.
We affirm.
I. BACKGROUND
Kiley was born to Dix on November 6, 1986. Dix noti-
fied Gagnon of her pregnancy. He was then in the United States
Marine Corps stationed at Camp Le Jeune, North Carolina. She
also notified him of Kiley's birth.
On January 29, 1987, Dix filed a petition for support
in this case under the Revised Uniform Reciprocal Enforcement of
Support Act (URESA) (Ill. Rev. Stat. 1985, ch. 40, par. 1201 et
seq.) against Gagnon, which the circuit court transferred to
North Carolina. On October 19, 1989, the superior court of Oslow
County, North Carolina, dismissed the action without prejudice as
Gagnon had been discharged from the Marine Corps and moved to
Springfield, Illinois.
On April 2, 1990, Gagnon stated through his attorney
(by letter referencing this case number) that, in the event he
were determined to be Kiley's father, he was prepared to do "the
right thing." The letter noted statutory child support was $120
per month, stated he would exercise regular visitation, set out a
proposed visitation schedule and asked to hear from Dix within 10
days.
On March 24, 1994, the Department filed a petition to
determine the existence of a father-and-child relationship.
Blood tests were ordered. Following the results of the tests, on
February 15, 1995, the trial court entered an agreed order of
parentage.
On February 24, 1995, Gagnon filed a petition for visi-
tation. Since the time of Kiley's birth, Gagnon had not had
contact with her. After hearing evidence on March 17, the trial
court granted visitation by order of June 9, 1995.
On June 21, 1995, Dix moved to stay visitation, reopen
the case, and appoint a GAL. A GAL was appointed and, in her
July 1995 report, recommended that visitation be granted. On
July 13, 1995, the trial court conducted another evidentiary
hearing and in camera interview. On July 28, 1995, the trial
judge, after considering the GAL's report and determining that
visitation would be in the best interest of Kiley, ordered visi-
tation. Dix appeals.
II. ANALYSIS
Gagnon did not file a brief in this appeal. The stan-
dard of review in such instances is governed by First Capitol
Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128,
345 N.E.2d 493 (1976). Under Talandis, "if the record is simple
and the claimed errors are such that the court can easily decide
them without the aid of an appellee's brief, the court of review
should decide the merits of the appeal." Talandis, 63 Ill. 2d at
133, 345 N.E.2d at 495. We choose to decide this case on the
merits.
First, Dix argues that the trial court's ruling was
against the manifest weight of the evidence. We disagree.
The GAL's report recommended visitation. It noted
that, while Kiley stated she did not want to meet her father, her
reasons for this position were not clearly stated and appeared to
be a mixture of her feelings and those of her mother. The GAL
found Kiley had definite apprehension in meeting Gagnon. On the
other hand, at one point Kiley stated it "might be fun" to know
her father "if he was strong" and could give her piggyback rides
to bed.
The GAL also found that Gagnon appeared to truly want
to start a relationship with his daughter and undertook steps to
ease her transition. The report noted he had a bedroom for Kiley
and intended to enlist the aid of his sisters to decorate it in
an appropriate fashion. The GAL was also impressed by his state-
ment that he had arranged for his young niece to come to Spring-
field from Chicago to meet Kiley the first weekend the visitation
had been scheduled.
The GAL noted that, while Dix's protectiveness toward
her daughter was natural, her bitterness toward Gagnon was in-
fluencing Kiley. The GAL concluded Kiley certainly had room for
another adult figure in her life and recommended gradual visita-
tion.
At the July 1995 hearing on the visitation petition,
Dix testified she told Kiley on March 19, 1995, that she had a
father (but not his name): "After telling her, I just told her
that she probably will have to meet him. Hopefully we could
avoid that, but there was only so much that I could do." Both
Dix and Kiley shed tears in this discussion, and Dix had talked
to Kiley about it two or three times a week since. Dix prepared
Kiley for the in camera interview: "I told her it was a very
serious thing and what she decided and what she said would affect
her future"; "I told her she needed to say how she felt." The
child, age eight, indicated she did not want to see her father.
The fact that DCFS has obtained an order establishing
paternity and setting child support does not mean that the father
is automatically entitled to visitation, especially in a case
like this, where the child is eight years old. The Illinois Par-
entage Act of 1984 (Parentage Act) provides that, if a judgment
of parentage contains provisions for visitation, the court shall
determine visitation:
"in accordance with the relevant factors set
forth in the Illinois Marriage and Dissolution
of Marriage Act [(Marriage Act)] and any other
applicable law of Illinois, to guide the court
in a finding in the best interests of the child.
In determining custody, joint custody, or visita-
tion, the court shall apply the relevant standards
of the [Marriage Act]." (Emphasis added.)
750 ILCS 45/14(a)(1) (West 1994).
We reject the view that the Parentage Act thereby incorporates
section 607(a) of the Marriage Act, requiring a court to award
visitation to a noncustodial parent unless the court finds, after
a hearing, that visitation "would endanger seriously the child's
physical, mental, moral or emotional health." 750 ILCS 5/607(a)
(West 1994). The endangerment standard is an onerous one. In re
Marriage of Hanson, 112 Ill. App. 3d 564, 568, 445 N.E.2d 912,
915 (1983) (a dissolution of marriage case).
The reference in section 14(a)(1) of the Parentage Act
to the factors set forth in the Marriage Act to determine the
best interest of the child is a reference to section 602 of the
Marriage Act (750 ILCS 5/602 (West 1994)), not to section 607 of
the Marriage Act (750 ILCS 5/607 (West 1994)). The section
14(a)(1) reference to "relevant standards" makes it clear that
not every rule a court would apply to a parent in a dissolution
of marriage case applies with equal force to a parent in a par-
entage case. (Emphasis added.) 750 ILCS 45/14(a)(1) (West
1994). There is no presumption that it is in the best interest
of a child to have visitation with a biological father who has
had nothing to do with the child for eight years. In fact, the
parental rights of an unmarried father may be terminated where he
does not seek to establish paternity or pay birth expenses or
provide support. 750 ILCS 50/1(D)(n)(2) (West 1994) (definition
of "unfit person"). It would be inconsistent to legislatively
mandate visitation for a biological father whose parental rights
could be terminated if a petition seeking that relief were filed.
We hold the burden of proof in these cases is on the
noncustodial parent seeking visitation. A request for visitation
might in some cases be a vindictive response to a request for
child support, and the noncustodial parent's goal might not be
the development of a relationship with the child, but the annoy-
ance of the custodial parent. Where the court determines that
the noncustodial parent has a genuine interest in the child, how-
ever, the benefits of some sort of visitation may outweigh any
accompanying disruption. The court has discretion to grant or
deny requests for visitation in Parentage Act cases based on its
determination of the child's best interest. The record here
provides a basis for awarding visitation. The trial court's
ruling was not against the manifest weight of the evidence.
The case law cited by Dix is inapposite. In Weybright
v. Puckett, 262 Ill. App. 3d 605, 635 N.E.2d 119 (1994), this
court affirmed the trial court's denial of visitation to a pater-
nal grandmother on the basis that visitation was not in the best
interest of the child. We note that we affirmed the trial
court's exercise of discretion in Weybright, as we do here.
Weybright is further not analogous, because it involved a deter-
mination of the rights of a grandparent, rather than a parent.
We have noted that "[g]randparents *** do not step into their ***
children's shoes in regard to visitation" under the Marriage Act
(750 ILCS 5/101 et seq. (West 1992)). Weybright, 262 Ill. App.
3d at 608, 635 N.E.2d at 121. Grandparents' rights do not equate
with those of parents, because parents have responsibilities
toward their children that do not burden grandparents.
Weybright, 262 Ill. App. 3d at 608, 635 N.E.2d at 121-22.
Dix is correct when she points out that Kiley's pref-
erence should not be overlooked (although she is incorrect in
stating it is a primary factor). Frail v. Frail, 54 Ill. App. 3d
1013, 1016, 370 N.E.2d 303, 305 (1977). It was not overlooked.
As it was made clear in the GAL's report, Kiley's preference was
difficult to discern: on the one hand, she experienced an under-
standable apprehension; on the other hand, she was looking for-
ward to meeting Gagnon. The trial judge, after interviewing
Kiley in camera, concluded that visitation would be in her best
interest. This ruling was not against the manifest weight of the
evidence. We have reviewed the other cases cited by Dix (Gri-
ffiths v. Griffiths, 127 Ill. App. 3d 126, 468 N.E.2d 482 (1984);
In re Custody of Horbatenko, 176 Ill. App. 3d 970, 531 N.E.2d 1011 (1988); LeHew v. Mellyn, 131 Ill. App. 3d 314, 475 N.E.2d 913 (1985); People ex rel. Vallera v. Rivera, 39 Ill. App. 3d
775, 351 N.E.2d 391 (1976); In re Custody of D.A., 201 Ill. App.
3d 810, 558 N.E.2d 1355 (1990)), and they do not require a con-
trary result. In D.A., for example, petitioner sought a finding
of paternity (perhaps to bring a lawsuit for the death of the
mother in a Chicago Transit Authority accident) in preference to
respondent with whom the child had a parent-child relationship.
There is no similar effort to supplant an apparent father in this
case.
Dix next argues "plain error" in the trial court's
failure to appoint a GAL at the outset of the proceedings. Coun-
sel states: "The court must appoint a [GAL] before any issue is
determined that might affect the child," citing McDonald v.
McGowan, 163 Ill. App. 3d 697, 516 N.E.2d 934 (1987).
First, McDonald is not authority for that proposition,
nor does the law impose such a requirement. The GAL performed
valuable services in this case, but it was not essential that a
GAL be appointed. Often the child's interests are adequately
protected by one or the other parent, or by the court, and the
appointment of a GAL is not worth the cost. See In re Marriage
of Wycoff, 266 Ill. App. 3d 408, 417, 639 N.E.2d 897, 905 (1994).
Second, at the outset of the March 1995 hearing, the
court stated it would probably appoint a GAL but it was taking
advantage of time it then had to hear evidence; both parties were
apprised they could present other evidence as needed when the
matter was rescheduled. When Gagnon was asked if he had any
objection to a GAL being appointed, he said he did not. The
court and Gagnon's counsel engaged in a brief colloquy on the
possible GAL appointment before Gagnon was tendered for cross-
examination. At the April 3, 1995, hearing on economic issues,
Dix acknowledged she would drop her support action if Gagnon
dropped the visitation petition. In questioning by the court Dix
stated: "I cannot afford your [GAL], I have released my attor-
ney, I cannot afford this."
On April 6, 1995 (filed June 9, 1995), Dix advised the
court and Gagnon's attorney by letter that her employing unit
would cease to exist June 30 and she would be employed elsewhere
as of July 1; she requested the case be expedited and concluded
by mid-June. On April 26, 1995, a motion to withdraw as counsel
for Dix was filed on behalf of Brown, Hay and Stephens stating it
was advised she did not have funds to engage attorneys in the
matter and would represent herself. On May 5, 1995, Dix filed
her appearance as party pro se and the court allowed the law firm
to withdraw. On June 1, the court by letter advised it had de-
cided it was in Kiley's best interest to begin visitation with
her father, according to the schedule his attorney had proposed,
and directed counsel to prepare the order. Not until her
June 21, 1995, motion to reopen, represented by new counsel, did
Dix seek appointment of a GAL. The court then accommodated her
and made the appointment.
Third, there is nothing in the record demonstrating
prejudice to Dix or Kiley.
III. CONCLUSION
In closing, we are constrained to admonish the parties
that it is for each of them to rise above their personal dif-
ferences and fears and to cultivate Kiley's relationship, love,
and respect for each other. In Kiley's presence and within her
hearing, each should be discussed only in a positive way by the
parties and their friends and relatives. Perhaps Gagnon and his
family should have been involved in Kiley's life earlier, but let
that situation now be remedied. So far as the record before this
court shows, the parties have an intelligent child to raise and
they should cooperate to that end.
For the foregoing reasons, the ruling of the trial
court is affirmed.
Affirmed.
STEIGMANN, P.J., and KNECHT, J., concur.