In re K.J.R.
Annotate this Case
October 29, 1997
No. 1-96-2742
IN THE MATTER OF THE PETITION )
OF K.J.R. and D.F.R., )
)
Petitioners-Appellees, ) APPEAL FROM THE CIRCUIT
) COURT OF COOK COUNTY.
TO ADOPT )
)
O.J.M. aka O.J.K., a Minor. ) HONORABLE JAMES HENRY,
) JUDGE PRESIDING.
E.M.H., )
)
Intervenor-Appellant. )
JUSTICE GORDON DELIVERED THE OPINION OF THE COURT:
The appellant, E.M.H., the putative father of O.J.M., a minor, appeals
from the section 2-619 (735 ILCS 5/2-619 (West 1996)) dismissal of his
petition to determine the existence of the father and child relationship and
from the judgment order of adoption entered in favor of the petitioners, the
adoptive parents.
The facts alleged in the pleadings show that, during her pregnancy, the
mother of the child, H.K., reached an agreement with the petitioners, K.J.R.
and D.F.R., to turn the child over to them upon its birth. Prior to the
child's birth, the petitioners also discussed the adoption plan with the man
alleged by H.K. to have been the child's father, T.M. T.M. was subsequently
listed as the father on the child's birth certificate issued on January 23,
1996. The child was born on November 12, 1995; and upon its discharge from
the hospital on November 13, 1995, the child was turned over to the
petitioners. Two days later, on November 15, 1995, the petitioners filed
their petition to adopt in which they alleged the consent of the child's
parents. On November 20, 1995, T.M., the alleged father, attended an
interview at the office of the Cook County Department of Support Services and
signed a Final and Irrevocable Consent to Adoption. The child's mother did
not appear for her appointment also scheduled with that agency on that date.
Pursuant to the petitioners' motion, the court entered an interim order on
November 20, 1995 terminating the parental rights of T.M. and awarding
temporary custody of the child to the petitioners.
On December 6, 1995, the petitioners filed an amended petition to adopt.
In count I they sought termination of the biological mother's parental rights
alleging that she was an unfit person as defined by section 1 of the Adoption
Act (750 ILCS 50/1 (West 1994)). The petitioners alleged that the mother was
depraved; habitually addicted to drugs, other than those prescribed by a
physician for at least one year prior to commencement of the adoption
proceeding; unable to discharge parental responsibilities due to mental
impairment or mental illness; and had failed to protect the child from
conditions within the environment injurious to the child's welfare. In counts
II and III of their amended petition, the petitioners sought permanent custody
and a "best interests" hearing pursuant to section 20 of the Adoption Act (750
ILCS 50/20 (West 1994)) and sections 601 and 602 of the Illinois Marriage and
Dissolution of Marriage Act (750 ILCS 5/601, 602 (West 1994)).
On December 22, 1995, the mother filed a verified motion to vacate the
interim custody order; and on January 17, 1996 she filed a verified motion for
visitation. On February 8, 1996, E.M.H., the appellant, filed, for the first
time, a motion for leave to intervene and a motion for blood tests to
determine whether he was the child's father. In this combined motion, E.M.H.
alleged that he was informed by the child's mother, on or about January 31,
1996, that he, not T.M., was the father of the child. E.M.H. admitted to
having sexual relations with H.K. on several occasions during the period of
January to March 1995 within which time the child could have been conceived.
The matter was continued by order of the court to February 27, 1996. On
February 27, 1996, E.M.H. filed a second motion for leave to intervene and for
blood tests. In that unverified motion he alleged new matter, namely, that he
had had sexual relations with H.K. on several occasions and that, therefore,
he believed that he could be the father of the child. He further alleged that
H.K., prior to the birth of the child, told him that he was not the father of
the child and, because of that, he had "no notice of his possible paternity
until January 31, 1996." E.M.H. was granted leave to file his motion for
leave to intervene and for blood tests on February 27, 1996; and the matter
was continued to April 16, 1996.
On March 12, 1996, the birth mother filed a verified response to the
amended petition to adopt and also moved to dismiss counts II and III of that
petition. In her response, she denied that T.M. was the biological father of
the child. At the hearing on April 16, 1996, the court reserved ruling and
hearing on the birth mother's pending motions; set trial on count I of the
amended adoption petition; and directed the commencement of blood testing,
with the results to be held in camera. The court also entered an order
granting E.M.H. leave to file a "proper" petition to intervene and a parentage
petition. E.M.H. filed a petition to determine the existence of the father
and child relationship on April 26, 1996. The petitioners moved to dismiss
E.M.H.'s motion for leave to intervene and for blood tests and his parentage
petition. Hearing on that motion was set for July 2, 1996.
During the period of April to June 1996, the birth mother did not
respond to petitioners' discovery requests and failed to appear for her
deposition. On May 21, 1996, the court granted the motion of her counsel to
withdraw his appearance. On June 6, 1996, petitioners moved to strike the
birth mother's answer and moved for an order holding her in default and
terminating her parental rights. On June 13, 1996, finding that due notice
had been given the birth mother, the court struck her answer and entered a
default order sustaining the allegations in the amended adoption petition that
H.K. was depraved, habitually addicted to drugs, unable to discharge parental
responsibilities because of mental impairment or mental illness and that she
failed to protect the child from an injurious environment. The court
thereafter terminated H.K.'s parental rights.
At the July 2, 1996 hearing on the petitioners' motion to dismiss
E.M.H.'s motion for leave to intervene and his parentage petition, the court
ruled that it would allow E.M.H. to file his petition to intervene. It
dismissed E.M.H.'s parentage petition pursuant to section 2-619 of the Code of
Civil Procedure (735 ILCS 5/2-619 (West 1996)) finding that E.M.H.'s petition
was barred because E.M.H. failed to register with the Putative Father Registry
within 30 days of the child's birth as required by section 12.1 of the
Adoption Act (750 ILCS 50/12.1 (West 1994)).[fn1] On July 3, 1996, the court
entered its order granting E.M.H.'s motion for leave to intervene and for
blood tests; granted E.M.H. leave to file his parentage petition; granted the
petitioner's motion to dismiss E.M.H.'s parentage petition with prejudice; and
ordered disclosure of the blood test results to E.M.H. and the petitioners
through their attorneys. By separate order, also on that date, the court
entered judgment on the amended adoption petition adjudicating the child to be
the legal child of K.J.R. and D.F.R. and changing his name to H.D.R. E.M.H.
filed his notice of appeal on July 30, 1996.
On appeal, E.M.H., the putative father, argues that the trial court
erred in dismissing his parentage petition by reason of his failure to comply
with the provisions of the Adoption Act regarding the timely registration with
the Putative Father Registry. E.M.H. contends that his failure to register
should be excused because of the biological mother's misrepresentation
concerning the identity of the child's father. E.M.H. alternatively argues
that the putative father registry provisions of the Adoption Act deprived him
of his constitutional equal protection and due process rights.
I. Putative Father Registry Provisions
Section 12.1 of the Adoption Act, which became effective on July 3,
1994, created the Putative Father Registry to be maintained by the Department
of Children and Family Services. 750 ILCS 50/12.1 (West 1994). The purpose
of that registry is to determine the identity and location of putative fathers
whose paternity has not been established in order that they may be given
notice of any ensuing adoption proceedings. 750 ILCS 50/12.1 (West 1994).
Subsection (b) of that provision states that the "putative father may register
with the Department before the birth of the child but shall register no later
than 30 days after the birth of the child." 750 ILCS 50/12.1(b) (West 1994).
Subsection (g) of that provision further states:
"Except as provided in Section 8(b) of this Act,[fn2] a putative
father who fails to register with the Putative Father Registry as
provided in this Section is barred from thereafter bringing or
maintaining any action to assert any interest in the child, unless
he proves by clear and convincing evidence that:
(1) it was not possible for him to register within the time
period specified in subsection (b) of this Section; and
(2) his failure to register was through no fault of his
own; and
(3) he registered within 10 days after it became possible
for him to file.
A lack of knowledge of the pregnancy or birth is not an acceptable
reason for failure to register." 750 ILCS 50/12.1(g) (West 1994).
This provision and other related amendatory provisions were enacted by
the Illinois legislature in response to the Illinois Supreme Court case of In
re Petition of Doe, 159 Ill. 2d 347, 638 N.E.2d 181 (1994). House Bill 2424,
which was approved and signed into law on July 3, 1994, seventeen days after
Doe was filed, amended various statutory provisions affecting newborn
adoptions, older child adoptions, foster families, juvenile court records and
interstate child support. Pub. Act 88-550, eff. July 3, 1994. See generally
S. Bostick, The Baby Richard Law: Changes to the Illinois Adoption Act, 82
Ill. Bar J. 654 (1994) [hereinafter S. Bostick, The Baby Richard Law]. By
adding and amending various provisions of the Adoption Act, the legislature
sought to balance the interests of the biological mother, the putative father,
the adopting parents and the child; specifically indicating, however, that the
best interests and welfare of the child were to be of paramount consideration.
750 ILCS 50/20a (West 1994). With respect to the parental rights of putative
fathers, the statute protects those putative fathers who have taken certain
specified actions to preserve their rights. See 750 ILCS 50/8(b), (c) (West
1994); 750 ILCS 12a1.5(c) (West 1994) recodified at 750 ILCS 7C (West 1996).
If the putative father has not so acted within the time limits provided by
statute, the child's right to a stable environment and finality becomes
paramount; and the putative father loses all right to intervene in adoption
proceedings or to vacate finalized adoption orders. See Lehr v. Robertson,
463 U.S. 248, 77 L. Ed. 2d 614, 103 S. Ct. 2985 (1983).
In accordance with that rationale, subsection 12.1(h) of the Adoption
Act provides that the failure to timely register results in a waiver and
surrender of any right to notice of any hearing in any judicial proceeding for
the adoption of the child; negates the requirement of consent and surrender of
that person to the adoption; constitutes an abandonment of the child; and is
prima facie evidence of sufficient grounds to support termination of such
father's parental rights under the Adoption Act. 750 ILCS 50/12.1(h) (West
1994). For other putative father registry statutes see, e.g., Ariz. Rev.
Stat. Ann. 8-106.01 (Supp. 1996); Ark. Code Ann. 9-9-224, 20-18-701 through
20-18-705 (Michie 1993 & Supp. 1995); Ind. Code Ann. 31-19-5-1 through 31-
19-5-25 (Michie 1997); N.M. Stat. Ann. 32A-5-19, 32A-5-20 (Michie 1995 &
1977 Supp.); N.Y. Dom. Rel. Law 111-a (McKinney 1988 & 1997 Supp.), N.Y. Soc.
Serv. Law 373-c (McKinney 1992).
E.M.H. does not dispute the fact that he did not register with the
Putative Father Registry. He argues, however, that the registration
requirement is inapplicable here, where it is alleged that the biological
mother committed fraud in identifying the biological father to be someone
other than E.M.H. In support of this argument, E.M.H. concedes that mere lack
of knowledge of pregnancy or birth would not excuse registration. He
contends, however, that here the lack of knowledge was of his paternity and
that this lack of knowledge was attributable to H.K.'s fraud.
We first note that the characterization of the biological mother's
misrepresentation as fraudulent does not conform with the traditional
definition of that term since the biological mother is not a party to this
proceeding and, in opposing the adoption, aligned herself with the interests
of E.M.H. rather than the adoptive parents. There is no allegation of any
fraudulent conduct on the part of the adoptive parents, unlike the
circumstances alleged in In re Petition of Doe, 159 Ill. 2d 347, 638 N.E.2d 181 (1994), where the court found that the adoptive parents participated in an
attempt to conceal the birth of the child from the father.
More overridingly, however, the birth mother's misrepresentation in this
case would not sufficiently justify reliance on the part of the father so as
to excuse his obligation to register. See City of Chicago v. American
National Bank & Trust Co., 233 Ill. App. 3d 1031, 599 N.E.2d 1126 (1992)
(person charging another with fraud must show that his reliance upon
fraudulent representation was reasonable under the circumstances). Despite
H.K.'s initial statement to E.M.H. that he was not the father, E.M.H. had
independent knowledge of the fact that he could have been the father. By his
own admissions in his motion to intervene and in his parentage petition,
E.M.H. stated that he had had extended sexual relations with H.K. during the
time span within which the child could have been conceived and that E.M.H.
knew of H.K.'s ensuing pregnancy before the birth of the child. Moreover,
E.M.H.'s statement that he "believed" that he could be the father of H.K.'s
child, inferentially admits to the fact that his sexual relations with H.K.
occurred without the use of any prophylaxis. See S. Bostick, The Baby Richard
Law, 82 Ill. Bar J. 654, 657 stating,
"A father's lack of knowledge of the pregnancy or birth does not
justify his failure to register -- the drafters observed the
biological imperative that the father participated in the child's
conception, and therefore was on notice that a child could have
been born nine months hence."
We further note that, given these circumstances, there was no
demonstrated basis for E.M.H. to presume that H.K. could have known with any
reasonable certainty that he was not the father of her child. All that H.K.
reasonably could have been presumed to know is that a man other than E.M.H.
could also have shared in the possibility of being the father of her child.
There is no basis to condone reliance by E.M.H. upon H.K.'s categorical
assertion that he was not the father. Such knowledge of E.M.H. of possible
parentage, albeit uncertain, is sufficient to invoke the registration
provisions of the Putative Father Registry statute. 750 ILCS 50/12.1 (West
1994).
The Putative Father Registry statute does not require certainty by the
putative father that he is in fact the biological father at the time he
registers. The statute defines "putative father" as:
"a man who may be a child's father, but who (1) is not married to
the child's mother on or before the date that the child was or is
to be born and (2) has not established paternity of the child in a
court proceeding before the filing of a petition for the adoption
of the child." (Emphasis added.) 750 ILCS 50/1(R) (West 1994).
By its very definition, a putative father is one who has not established
paternity and, thus, would not know with certainty whether he is in fact the
biological father until court proceedings are initiated by the filing of a
parentage petition and the establishment of paternity thereafter. All that a
male need know in order to register in accordance with the statute is that he
may be the father.
While the result in a given case may seem unduly stringent, one must
look to the overall policy and purpose of the statute which the court is
called upon to enforce. As noted, the registry requirements of the Adoption
Act seek to balance the interests of the putative father with the interests of
the adoptive parents and, more overridingly, the child, whose interests are
paramount (750 ILCS 50/20a (West 1994) ("[t]he best interests and welfare of
the person to be adopted shall be of paramount consideration in the
construction and interpretation of this Act")). See S. Bostick, The Baby
Richard Law, 82 Ill. Bar J. at 656. Thus, the statute purports only to ensure
that a putative father, who registers promptly, that is, within the time
limits specified in the statute, is notified of adoption proceedings so that
he can assert his parental rights while those proceedings are pending. 750
ILCS 50/12.1 (West 1994). Concomitantly, it also purports to ensure the
child's right to a stable environment by limiting judicial discretion with
respect to the termination of the putative father's parental rights when those
rights are first asserted after the statutory time limits for registration
have expired. See 750 ILCS 50/20a (West 1994) ("[i]t is in the best interests
of persons to be adopted that this Act be construed and interpreted so as to
not result in extending time limits beyond those set forth herein"). See also
S. Bostick, The Baby Richard Law, 82 Ill. Bar J. 654. The registration
requirement avoids the injection of uncertainty and instability in the
adoption process.[fn3]
Here, E.M.H. knew that he had had sexual relations with the birth mother
and could have exercised his right to register from the date of those acts
until 30 days after the day the child was born. He has not alleged that it
was impossible for him to register during that time. Notwithstanding H.K.'s
initial disclaimer of E.M.H.'s parentage, there can be no dispute that E.M.H.
had substantial reason to suspect the possibility of his parentage since he
knew of the pregnancy and of his extended sexual cohabitation with H.K. during
the window period of conception. There would be no basis to warrant reliance
on the mere disclaimer of H.K. without further investigation and proof. At
best, such a disclaimer would simply act to give transitory reassurance to a
potential father that the mother did not, as of that time, herself intend to
involve him, legally or otherwise, in the responsibility of parentage. That
is not sufficient to exculpate the putative father's duty to register. As
noted, the Adoption Act provides that "lack of knowledge of pregnancy or birth
is not an acceptable reason for failure to register." 705 ILCS 50/12.1(g)
(West 1994). If anything, this denotes that the Adoption Act requires
positive effort by the putative father to ascertain whether he is the
biological father and to pursue his parenting rights and obligations
notwithstanding the silence, passivity or miscommunication of the mother with
regard to paternity.
Lastly, while we need not reach this issue, we note that even if E.M.H.
reasonably could have relied on H.K.'s misrepresentation and even if such
reliance could have excused E.M.H. from registering during the statutory time
period, he would not have been excused permanently from registering. The
Adoption Act explicitly states that, if it was impossible for the putative
father to register before the expiration of 30 days following the birth of the
child, he must register within ten days after it becomes possible for him to
do so. 705 ILCS 50/12.1(g)(3) (West 1994). Here, E.M.H. admitted that he
learned of H.K.'s alleged fraud on January 31, 1995. Nevertheless, E.M.H.
failed to register within ten days of that date or for that matter at any time
thereafter.
Thus, as E.M.H. failed to timely register and as E.M.H. did not allege
facts that would bring him within the exceptions to section 12.1(g) of the
Adoption Act, he was barred from bringing or maintaining his parentage
petition and that petition was properly dismissed pursuant to section 2-
619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 1996)).
750 ILCS 50/12.1(g) (West 1994).
II. Constitutional Claims
E.M.H. alternatively argues that if the provisions of section 12.1(g)
and (h) of the Adoption Act operate to deprive him of his right to proceed
with his parentage petition, then those provisions are unconstitutional
because they deprive him of equal protection of the laws and due process.
E.M.H. argues that he is denied equal protection because he is treated
differently from fathers whose parental rights are regulated by the adoption
provisions found within the Illinois Juvenile Court Act of 1987 (the Juvenile
Court Act) (705 ILCS 405/1-1 et seq. (West 1994)). He also argues that he is
deprived of a liberty interest to have personal contact with his child and
that he was deprived of that interest without procedural due process.
A. Equal Protection
In accordance with the equal protection guarantees of the United States
Constitution (U.S. Const., amend. XIV), a State may not draw distinctions
based solely on differences that are irrelevant to a legitimate governmental
objective. Lehr v. Robertson, 463 U.S. 248, 77 L. Ed. 2d 614, 103 S. Ct. 2985
(1983); Nevitt v. Langfelder, 157 Ill. 2d 116, 623 N.E.2d 281 (1993). The
legitimate governmental objective with respect to the enactment of adoption
laws is to promote the best interest of the child, to protect the rights of
interested third parties and to ensure promptness and finality. Lehr, 463 U.S. at 265, 103 S. Ct. at 2995. Those interests were specifically recognized
in the stated purpose to Public Act 88-550, the legislation creating the
Putative Father Registry and amending various provisions within the Adoption
Act relative to the rights of putative fathers. Pub. Act 88-550, eff. July 3,
1994. See also In re Joseph B., 258 Ill. App. 3d 954, 630 N.E.2d 1180 (1994)
(purpose of Adoption Act is to promote the finality and stability of
adoptions).
As noted above, E.M.H. argues that section 12.1 of the Adoption Act is
unconstitutional because it subjects him to disparate treatment from other
similarly situated putative fathers whose parental rights are regulated by the
adoption provisions found within the Juvenile Court Act (705 ILCS 405/1-1 et
seq. (West 1994)). E.M.H. cites to the putative father notice provision in
section 2-30 of the Juvenile Court Act (705 ILCS 405/2-30 (West 1994)) which
governs the adoption of children found to be abused, neglected or dependent.
He notes that the notice provided to a putative father under that Act allows
the putative father 30 days from his receipt of the notice to declare
paternity or request notification of further proceedings. See 705 ILCS 405/2-
30.2 (West 1994). E.M.H. further notes that he was treated differently under
the Adoption Act because he was not given notice or a 30-day time limit
thereafter to file a paternity petition. E.M.H. contends that the Adoption
Act and the Juvenile Court Act are to be considered in pari materia as parts
of an overall statutory scheme that promotes the best interests of children.
He contends that the differential treatment afforded putative fathers under
the Adoption Act, when considered in conjunction with the Juvenile Court Act,
lacked rationality and is unconstitutional. We disagree.
First, we do not perceive that putative fathers are treated disparately
under each of these Acts. The Adoption Act specifically states that it should
be construed in concert with the Juvenile Court Act. See 750 ILCS 50/2.1
(West 1994). Moreover, section 2-29 of the Juvenile Court Act, which allows
for the adoption of abused, neglected or dependent minors who are made wards
of the court, specifically incorporates by reference many of the provisions in
the Adoption Act including those with respect to the requirements for notice
and consent. See, e.g., 705 ILCS 405/2-29(1) (West 1996) ("a ward of the
court under this Act *** may be the subject of a petition for adoption under
[the Adoption Act]"); 2-29(2) (requiring proof of unfitness of non-consenting
parent as defined in Adoption Act); 2-29(3) (requiring written consent of
parent to court order authorizing the guardian to consent to adoption in form
provided under Adoption Act).[fn4] See also In re J.M., 245 Ill. App. 3d
984, 613 N.E.2d 1346 (1993) (stating that Juvenile Court Act is to be
construed in concert with the Adoption Act).
Under section 2-29 of the Juvenile Court Act, adoption of abused,
neglected or dependent minors who are made wards of the court is allowed to
proceed, depending upon the circumstances, under three alternative routes: by
the court's consent (705 ILCS 405/2-29(1) (West 1994)); by the consent of the
parents "in the manner required by such [the Adoption] Act" (705 ILCS 405/2-
29(1) (West 1994)); or by the consent of the guardian of the person who is
appointed by the court with the consent of the parents or upon the court's
finding of parental unfitness as defined in section 1 of the Adoption Act (705
ILCS 405/2-29(2) (West 1994)). Thus, when the adoption under the Juvenile
Court Act occurs pursuant to the consent of the parents, it must proceed "in
the manner required by [the Adoption] Act" (705 ILCS 405/2-29(1) (West 1994)).
The consent necessary under the Adoption Act would of necessity be the consent
of those parents identified in subsections 8(b) and (c) of the Adoption Act,
namely, the mother of the child and the father who falls within one of the
categories delineated in section 8(b)(1)(B) or 8(c)(1)(B) of the Adoption Act
(750 ILCS 50/8(b)(1)(B), 8(c)(1)(B) (West 1994)). Specifically included
within those delineations is the putative father who registers with the
Putative Father Registry and who has commenced legal proceedings to establish
paternity. 750 ILCS 50/8(b)(1)(B)(vii), 8(c)(1)(B)(vii) (West 1994).[fn5]
Section 2-30 of the Juvenile Court Act, which as mentioned previously
deals with the notice entitlement to putative fathers, does not explicitly
reference the Adoption Act. That provision is virtually identical to the
notice of putative father provision in section 12a of the Adoption Act.[fn6]
Under both provisions, that notice is given upon the written request of any
interested party, namely, persons intending to adopt the child, a child
welfare agency with whom the mother has placed or has given notice of her
intention to place the child for adoption, the mother of the child, or any
attorney representing an interested party. 705 ILCS 405/2-30 (West 1994); 750
ILCS 50/12 A. 1 (West 1994). The form and content of the notice, as specified
under both provisions, informs the putative father that, as the alleged father
of the child, he has certain legal rights with respect to the child and
further informs the putative father that if he wishes to retain those rights
he must file with the Clerk of the Circuit Court a declaration of paternity, a
copy of which is enclosed with the notice, within 30 days of the receipt of
the notice stating that he is the father of the child, that he intends to
retain his legal rights with respect to the child, or that he requests to be
notified of any further proceedings with respect to custody or adoption of the
child. The notice also advises the putative father that a failure to file the
declaration of paternity or a request for notice results in the termination of
whatever legal rights he may have with respect to the child. See 705 ILCS
405/2-30.2 (West 1994); 750 ILCS 50/12 A. 2 (West 1994). In accordance with the
notice provisions of both statutes, if the putative father does not file a
declaration for paternity within 30 days, he need not be made a party to or be
given notice of any adoption proceeding. 705 ILCS 405/2-30.4 (West 1994); 750
ILCS 50/12 A. 4 (West 1994).
While section 2-30 of the Juvenile Court Act on its face does not
purport to except those unregistered putative fathers who would be required to
register under section 12.1 of the Adoption Act, neither are such putative
fathers excepted on the face of section 12a of the Adoption Act. Yet one can
only conclude that such putative fathers who have failed to register would not
be entitled to notice under section 12a of the Adoption Act since it is clear
from the content of the notice that it is intended only for putative fathers
whose consent would be required. Since it also is clear from section 12.1(h)
of the Adoption Act that such a right to consent would be waived by a failure
to register, there would be no purpose served by providing those putative
fathers with a section 12a notice. Likewise, such putative fathers who have
failed to register would not have a right to consent to adoptions under the
Juvenile Court Act pursuant to subsections 8(b)(1)(B)(vii) and 8(c)(1)(B)(vii)
of the Adoption Act which, as noted above, are incorporated by reference into
the Juvenile Court Act pursuant to section 2-29(1) of that Act.
Thus, once it is determined under section 2-29 of the Juvenile Court Act
that no consent is required of a putative father because that alleged father
does not satisfy one of the categories set forth in section 8 of the Adoption
Act, the notice requirements to a putative father under section 2-30 of the
Juvenile Court Act, just as the notice requirements under section 12a of the
Adoption Act, become inapplicable. The right to consent, once excluded under
section 12.1(h) of the Adoption Act and, correspondingly, by reference under
section 2-29(1) of the Juvenile Court Act, is not restored by the ensuing
notice provisions of section 12a and 2-30, respectively, simply because they
do not specifically refer back to those exclusions.[fn7] Rather, as
discussed, the most cogent construction of the notice provision at section 12a
of the Adoption Act and, correspondingly, section 2-30 of the Juvenile Court
Act, as reflected in their substantially identical content, is that they will
follow the right to consent as carved out in subsections 8(b) and (c) of the
Adoption Act and the corresponding section 2-29(1) of the Juvenile Court Act.
Accordingly, a putative father who, like E.M.H., does not register and
initiate paternity proceedings thereafter would not be entitled to section 2-
30 notice under the Juvenile Court Act; and the purported difference in the
notice requirements of the two Acts argued by E.M.H. does not exist.
Moreover, even if there was no incorporation by reference of the
provisions of the Adoption Act into the Juvenile Court Act, there would be no
violation of equal protection. The Equal Protection Clause does not require
the legislature to address all areas of a problem that it seeks to reform. As
stated in Harris v. Manor Healthcare Corp., 111 Ill. 2d 350, 372-73, 489 N.E.2d 1374, 1384 (1986):
"A legislature is 'allowed to take reform "one step at a time,
addressing itself to the phase of the problem which seems most
acute to the legislative mind" [citation]; and a legislature need
not run the risk of losing an entire remedial scheme simply
because it failed, through inadvertence or otherwise, to cover
every evil that might conceivably have been attacked.' (McDonald
v. Board of Election Commissioners (1969), 394 U.S. 802, 809, 89 S. Ct. 1404, 1409, 22 L. Ed. 2d 739, 746; see also Chicago
National League Ball Club, Inc. v. Thompson (1985), 108 Ill. 2d 357, 367, 483 N.E.2d 1245; Rockford Drop Forge Co. v. Pollution
Control Board (1980), 79 Ill. 2d 271, 281, 402 N.E.2d 602.)"
In Harris, the court upheld a law that applied to private nursing homes and
exempted State-operated nursing homes stating that the legislature could
believe that the protections of the statute were more urgently needed by
private nursing home residents than State-operated nursing home residents.
Following this principle, the Illinois Supreme Court in People v. Esposito,
121 Ill. 2d 491, 521 N.E.2d 873 (1988), held that there was no equal
protection violation where the legislature elected to penalize persons who
drive with a blood-alcohol concentration of 0.10 with summary suspension while
not requiring summary suspension for other categories of impaired drivers.
The court found that the General Assembly enacted the summary suspension
scheme in response to "widespread concern over the threat which drunk drivers
pose to safety and human life in our society." Esposito, 121 Ill. 2d at 503,
521 N.E.2d at 878. In reliance on Harris, the court found that the equal
protection guarantee did not prohibit the legislature from choosing to focus
particularly on the hazard posed by drunk drivers. Accord People v. Mondhink,
194 Ill. App. 3d 806, 551 N.E.2d 755 (1990) (no denial of equal protection
where legislature enacted an enhanced penalty for repeat offense of driving
while license revoked where original revocation was predicated on certain
offenses and not others; court found that legislature limited enhancement
provision to predicate offenses posing the greatest threat to the motoring
public).
Here, the amendments to the Adoption Act that resulted from the passage
of House Bill 2424 were designed to avoid the injection of uncertainty and
instability in adoptions arising under the Adoption Act seen as an outflow
from In re Petition of Doe, 159 Ill. 2d 347, 638 N.E.2d 181 (1994). See
generally S. Bostick, The Baby Richard Law, 82 Ill. Bar J. 654 (1994). In its
effort to accomplish that result, the legislature turned first to the Adoption
Act, the avenue by which most adoptions occur. It is common knowledge that
adoptions in this State are initiated primarily under the Adoption Act, as was
the adoption in In re Petition of Doe, rather than under the Juvenile Court
Act. It is well known that as a matter of practice in Cook County all
adoptions are initiated in the county division of the circuit court under the
Adoption Act rather than in the juvenile division of the circuit court under
the Juvenile Court Act. Thus, as such, the amendments to the Adoption Act
would suffice to cover the overwhelming number of adoptions that take place in
this State.
B. Due Process
E.M.H. next contends that section 12.1 of the Adoption Act deprived him
of a liberty interest to have personal contact with his child and that he was
deprived of that interest without notice and opportunity to be heard.
The relationship between parent and child is constitutionally protected
by the Due Process Clause of the Fourteenth Amendment of the United States
Constitution (U.S. Const., amend. XIV). E.g., Lehr v. Robertson, 463 U.S. 248, 77 L. Ed. 2d 614, 103 S. Ct. 2985 (1983); Quilloin v. Walcott, 434 U.S. 246, 54 L. Ed. 2d 511, 98 S. Ct. 549 (1978); Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972). However, the parent's right to
maintain his or her parental relationship with the child depends not on the
mere biological connection but on the existence of a relationship with the
child that is more enduring. Lehr, 463 U.S. at 260, 103 S. Ct. at 2992 citing
Caban v. Mohammed, 441 U.S. 380, 397, 60 L. Ed. 2d 297, 99 S. Ct. 1760, 1770
(1979) (Stewart, J. dissenting). As stated in Lehr,
"When an unwed father demonstrates a full commitment to the
responsibilities of parenthood by 'com[ing] forward to participate
in the rearing of his child,' Caban, 441 U.S., at 392, 60 L. Ed. 2d 297, 99 S. Ct. 1760, his interest in personal contact with his
child acquires substantial protection under the Due Process
Clause. ***
The significance of the biological connection is that it
offers the natural father an opportunity that no other male
possesses to develop a relationship with his offspring. If he
grasps that opportunity and accepts some measure of responsibility
for the child's future, he may enjoy the blessings of the parent-
child relationship and make uniquely valuable contributions to the
child's development. If he fails to do so, the Federal
Constitution will not automatically compel a State to listen to
his opinion of where the child's best interests lie." 463 U.S. at
261-62, 103 S. Ct. at 2993-94.
Accord Father in Pima County Juvenile Action No. S-114487 v. Adam (In re
Appeal in Pima County Juvenile Severance Action No. S-114487), 179 Ariz. 86,
94, 876 P.2d 1121, 1129 (1994) ("an unwed father's parental rights do not
attain fundamental constitutional status unless he takes significant steps to
create a parental relationship").
In Lehr, the putative father raised a due process claim identical to
that which is raised in the instant case. The facts in that case showed that
father had very little contact with the child. He lived with the child's
mother before the child was born and visited the child in the hospital after
she was born. There appears to have been no contact thereafter. When the
child was two years old, her mother's husband petitioned to adopt her. No
notice of that proceeding was provided to the putative father; and the
adoption was approved. Thereafter, the putative father moved to vacate the
adoption order because he was not provided with notice.
The New York statutory scheme under review in Lehr required that notice
of adoption be given to seven categories of putative fathers who, as the Court
explained, were likely to have assumed some responsibility for the care of
their natural children. N.Y. Dom. Rel. Law 111-a(2) (McKinney 1977 and Supp.
1982-83). See Lehr, 463 U.S. at 263, 103 S. Ct. at 2994. Included as one of
the seven categories was the putative father who filed with the putative
father registry. N.Y. Dom. Rel. Law 111-a(2)(c). The Supreme Court reviewed
this notice provision and found that it adequately protected the appellant's
inchoate interest in establishing a relationship with his child. The Court
found that the statute was procedurally adequate because it did not exclude
responsible fathers and because "the qualification for notice [was not] beyond
the control of an interested putative father," finding that all the father
need do was mail a postcard to the putative father registry. Lehr, 463 U.S.
at 263-64, 103 S. Ct. at 2994-95. Finally, the Court stated that the New York
legislature's refusal to adopt a more "open-ended notice requirement" was not
arbitrary given the State's legitimate interest in "facilitating the adoption
of young children and having the adoption proceeding completed expeditiously."
Lehr, 463 U.S. at 264-65, 103 S. Ct. at 2995.
The Illinois adoption laws, like the New York statutes considered in
Lehr, provide a statutory scheme that protects the putative father's interest
in assuming a responsible role in the future of his child. As with the New
York statute, the Illinois Adoption Act provides a putative father registry
and requires that notice of adoption be given to those putative fathers who
assert their rights by filing with the registry. Compare 750 ILCS 50/12.1,
12 A. 1.5, 12 A. 2 (West 1994) with N.Y. Soc. Serv. Law 372-c (McKinney Supp.
1982-83) and N.Y. Dom. Rel. Law 111-a(2) (McKinney 1977 and Supp. 1982-83).
Also as in New York, Illinois has a legitimate state interest in limiting the
rights of putative fathers who do not grasp the opportunity to assume
responsibility for the child. That interest was expressed in prefatory
language in Public Act 88-550 as ensuring stable living environments for
children, according biological parents reasonable opportunities to acknowledge
parenthood and affording adoptive parents the ability to reasonably rely on
the adoption courts for timely completions of adoptions. See Pub. Act 88-550,
eff. July 3, 1994.
Here, as in Lehr, the putative father failed to register and did not
fall within any of the other statutory categories wherein he would have been
entitled to notice of the adoption proceedings. The putative father's
statutory right to receive notice was completely within his control as was his
right to commence legal proceedings to establish paternity. E.M.H., the
putative father, failed to act to preserve his inchoate interest in
establishing a relationship with his child by registering and initiating a
parentage action and thus, was not entitled to notice or opportunity to be
heard in the adoption proceedings. See also In re Appeal in Juvenile Action
No. JS-8490, 179 Ariz. 102, 876 P.2d 1137 (1994) (if a man has reasonable
grounds to know that he might have fathered a child, he must protect the
parental rights by investigating the possibility and acting appropriately);
Robert O. v. Russell K., 80 N.Y.2d 254, 640 N.E.2d 99, 590 N.Y.S.2d 37 (1992)
(unwed father with no knowledge of pregnancy or birth before adoption
finalized lacked due process liberty interest and right to notice and to
consent to adoption because he did not manifest a willingness to establish
relationship with child); In re Adoption of S.J.B., 294 Ark. 598, 745 S.W.2d 606 (1988) (where father not interested enough in outcome of sexual encounter,
due process not violated where statute did not require notice to him of
adoption). Thus, the Illinois adoption statute, like the New York statute
under review in Lehr, did not deprive E.M.H. of his due process rights
guaranteed by the United States Constitution.[fn8]
For the foregoing reasons, the judgment of the Circuit Court of Cook
County is affirmed.
Affirmed.
CAHILL and LEAVITT, JJ., concur.
[fn1]In point of fact, E.M.H. never registered with the
Putative Father Registry but only filed a parentage petition in
the circuit court which petition was filed more than 30 days
after the birth of the child.
[fn2]Subsection 12.1(g) of the Adoption Act was amended to
include section 8(c) as well as section 8(b) as exceptions. Pub.
Act 89-315, 5, eff. January 1, 1996.
[fn3]We note that the interest in finality and stability in
the adoption process is lessened where, as here, the unregistered
putative father acts beyond the time limits of section 12.1 of
the Adoption Act but while the adoption action is pending.
However, the Adoption Act does not treat differently those
unregistered putative fathers who act to preserve their parental
interests while the adoption proceedings are pending from those
who act after the adoption has been finalized. Therefore, the
registration requirements which apply to interventions after the
adoption decree has been finalized must be applied
correspondingly to interventions that take place during the
pendency of the adoption action.
[fn4]Since the references in section 2-29 of the Juvenile
Court Act cite to the Adoption Act "as now or hereafter amended"
or "as amended," it is clear that the Juvenile Court Act, as the
incorporating statute, would incorporate any subsequent additions
or modifications of the Adoption Act as well as its preexisting
provisions. See Kloss v. Suburban Cook County Tuberculosis
Sanitarium Dist., 404 Ill. 87, 88 N.E.2d 89 (1949). Thus, the
amendments made to the Adoption Act by Public Act 88-550, which
are the subject of the instant appeal, would be incorporated into
the Juvenile Court Act as so expressed in the latter statute.
[fn5]It is undisputed that E.M.H does not come within any of
the other categories of putative fathers whose consent is
required. Those categories include: the father who is married to
the mother of the child on the date of birth of the child, except
for a husband or former husband who has been found by a court of
competent jurisdiction not to be the biological father of the
child; the father of the child under judgment for adoption or an
order of parentage; in the case of a child placed for adoption
who is less than six months of age, the father who openly lived
with the child, the child's biological mother or both and who
held himself out to be the biological father during the first 30
days following the birth of the child; in the case of a child
less than six months of age, the father who made a good faith
effort to pay a reasonable amount of birth expenses and financial
support before expiration of 30 days following the birth of the
child; in the case of a child more than six months old, the
father who has maintained substantial and continuous or repeated
contact with the child as manifested by payment of reasonable
child support, by visitation at least monthly, or regular
communication with the child; and in the case of a child more
than six months old, the father who has openly lived with the
child for a period of six months within the one year period
immediately prior to placement of the child for adoption and
openly held himself out to be the father of the child. 750 ILCS
8(b)(1)(B)(i) through (vi), 8(c)(1)(B)(i) through (vi) (West
1994).
[fn6]At the time the adoption proceedings were initiated in
the instant case, section 12a of the Adoption Act (750 ILCS
50/12a (West 1994)) differed from section 2-30 of the Juvenile
Act in that it also contained a separate notice requirement for
putative fathers whose consent was not needed but who were
entitled to notice of the adoption proceedings. That provision,
section 12 A. 1.5, was enacted as part of Public Act 88-550, and
became effective July 3, 1994. Effective January 1, 1996,
subsection 1.5 of section 12a was transferred to section 7 of
that Act and is now codified as 750 ILCS 50/7C (West 1996). See
Pub. Act 89-315, 5, eff. January 1, 1996 (amending 750 ILCS
50/7, 12a (West 1994)). As a result of this change, sections 2-
30 of the Juvenile Court Act and 12a of the Adoption Act are
almost identical in language and purpose. For purposes of this
opinion, our reference to section 12a will refer to that
provision as it exists without former subsection 1.5 which is now
incorporated in section 7 of the Adoption Act. The impact, if
any, of former subsection 1.5 is further discussed infra, at
footnote 7.
[fn7]This analysis is further corroborated by the fact that
section 12 A. 1.5 of the Adoption Act (750 ILCS 50/12 A. 1.5 (West
1994) relocated at 750 ILCS 50/7C (West 1996), see supra, at
footnote 6) specifically provides for a separate notice to
certain putative fathers who have forfeited their rights to
consent. Under that provision, those putative fathers are
entitled only to notice of adoption proceedings in order that
they might present evidence relevant to the best interests of the
child but in no event are they entitled to assert a right of
consent. A putative father who registers but does not initiate a
parentage action within 30 days of that registration is one of
the designated recipients of this notice. It would therefore be
nonsensical to presume that a putative father who loses the right
to consent because he never registered could have that right
restored under section 12 A. 2 (750 ILCS 50/12 A. 2 (West 1994)),
while the putative father who registers but fails to file a
parentage petition is clearly denied the right to consent under
the explicit language of section 12 A. 1.5.
[fn8]In a motion taken with the case, E.M.H. moved to
supplement the record on appeal with the blood test results that
became available after his notice of appeal had been filed. The
petitioners filed objections to that motion. E.M.H.'s motion to
supplement the record is denied. First, we note that the
supplemental matter that is the subject of the motion did not
exist nor was it considered by the trial court prior to the
court's entry of its final orders. See Knight's Prairie Hunting
Club v. Holmes, 263 Ill. App. 3d 455, 636 N.E.2d 29 (1994)
(Supreme Court Rule 329 (155 Ill. 2d R. 329) allows parties to
supplement the record with documents that were before the trial
court). More convincingly, however, is the fact that, even if
the results were available to the court prior to entry of final
judgment, those results would have had no bearing on that
judgment or the appeal taken from that judgment. For the reasons
discussed in part I of this opinion, the existence of a
biological link between E.M.H. and the child is not dispositive.
The issue here was whether E.M.H. lost any rights he may have had
with respect to the child because he failed to register with the
Putative Father Registry and because that failure was not excused
by section 12.1 of the Adoption Act. 750 ILCS 50/12.1 (West
1994). Although the court ordered the blood testing, it did so
while petitioners' motion to dismiss E.M.H.'s motions and
parentage petition were pending. Because of the application of
section 12.1 of the Adoption Act, the question of parentage was
never a dispositive issue before the trial court and therefore
remains moot as to proceedings in this court as well.
No. 1-96-2742
IN THE MATTER OF THE PETITION )
OF K.J.R. and D.F.R., )
)
Petitioners-Appellees, ) APPEAL FROM THE CIRCUIT
) COURT OF COOK COUNTY.
TO ADOPT )
)
O.J.M. aka O.J.K., a Minor. ) HONORABLE JAMES HENRY,
) JUDGE PRESIDING.
E.M.H., )
)
Intervenor-Appellant. )
JUSTICE GORDON DELIVERED THE OPINION OF THE COURT:
The appellant, E.M.H., the putative father of O.J.M., a minor, appeals
from the section 2-619 (735 ILCS 5/2-619 (West 1996)) dismissal of his
petition to determine the existence of the father and child relationship and
from the judgment order of adoption entered in favor of the petitioners, the
adoptive parents.
The facts alleged in the pleadings show that, during her pregnancy, the
mother of the child, H.K., reached an agreement with the petitioners, K.J.R.
and D.F.R., to turn the child over to them upon its birth. Prior to the
child's birth, the petitioners also discussed the adoption plan with the man
alleged by H.K. to have been the child's father, T.M. T.M. was subsequently
listed as the father on the child's birth certificate issued on January 23,
1996. The child was born on November 12, 1995; and upon its discharge from
the hospital on November 13, 1995, the child was turned over to the
petitioners. Two days later, on November 15, 1995, the petitioners filed
their petition to adopt in which they alleged the consent of the child's
parents. On November 20, 1995, T.M., the alleged father, attended an
interview at the office of the Cook County Department of Support Services and
signed a Final and Irrevocable Consent to Adoption. The child's mother did
not appear for her appointment also scheduled with that agency on that date.
Pursuant to the petitioners' motion, the court entered an interim order on
November 20, 1995 terminating the parental rights of T.M. and awarding
temporary custody of the child to the petitioners.
On December 6, 1995, the petitioners filed an amended petition to adopt.
In count I they sought termination of the biological mother's parental rights
alleging that she was an unfit person as defined by section 1 of the Adoption
Act (750 ILCS 50/1 (West 1994)). The petitioners alleged that the mother was
depraved; habitually addicted to drugs, other than those prescribed by a
physician for at least one year prior to commencement of the adoption
proceeding; unable to discharge parental responsibilities due to mental
impairment or mental illness; and had failed to protect the child from
conditions within the environment injurious to the child's welfare. In counts
II and III of their amended petition, the petitioners sought permanent custody
and a "best interests" hearing pursuant to section 20 of the Adoption Act (750
ILCS 50/20 (West 1994)) and sections 601 and 602 of the Illinois Marriage and
Dissolution of Marriage Act (750 ILCS 5/601, 602 (West 1994)).
On December 22, 1995, the mother filed a verified motion to vacate the
interim custody order; and on January 17, 1996 she filed a verified motion for
visitation. On February 8, 1996, E.M.H., the appellant, filed, for the first
time, a motion for leave to intervene and a motion for blood tests to
determine whether he was the child's father. In this combined motion, E.M.H.
alleged that he was informed by the child's mother, on or about January 31,
1996, that he, not T.M., was the father of the child. E.M.H. admitted to
having sexual relations with H.K. on several occasions during the period of
January to March 1995 within which time the child could have been conceived.
The matter was continued by order of the court to February 27, 1996. On
February 27, 1996, E.M.H. filed a second motion for leave to intervene and for
blood tests. In that unverified motion he alleged new matter, namely, that he
had had sexual relations with H.K. on several occasions and that, therefore,
he believed that he could be the father of the child. He further alleged that
H.K., prior to the birth of the child, told him that he was not the father of
the child and, because of that, he had "no notice of his possible paternity
until January 31, 1996." E.M.H. was granted leave to file his motion for
leave to intervene and for blood tests on February 27, 1996; and the matter
was continued to April 16, 1996.
On March 12, 1996, the birth mother filed a verified response to the
amended petition to adopt and also moved to dismiss counts II and III of that
petition. In her response, she denied that T.M. was the biological father of
the child. At the hearing on April 16, 1996, the court reserved ruling and
hearing on the birth mother's pending motions; set trial on count I of the
amended adoption petition; and directed the commencement of blood testing,
with the results to be held in camera. The court also entered an order
granting E.M.H. leave to file a "proper" petition to intervene and a parentage
petition. E.M.H. filed a petition to determine the existence of the father
and child relationship on April 26, 1996. The petitioners moved to dismiss
E.M.H.'s motion for leave to intervene and for blood tests and his parentage
petition. Hearing on that motion was set for July 2, 1996.
During the period of April to June 1996, the birth mother did not
respond to petitioners' discovery requests and failed to appear for her
deposition. On May 21, 1996, the court granted the motion of her counsel to
withdraw his appearance. On June 6, 1996, petitioners moved to strike the
birth mother's answer and moved for an order holding her in default and
terminating her parental rights. On June 13, 1996, finding that due notice
had been given the birth mother, the court struck her answer and entered a
default order sustaining the allegations in the amended adoption petition that
H.K. was depraved, habitually addicted to drugs, unable to discharge parental
responsibilities because of mental impairment or mental illness and that she
failed to protect the child from an injurious environment. The court
thereafter terminated H.K.'s parental rights.
At the July 2, 1996 hearing on the petitioners' motion to dismiss
E.M.H.'s motion for leave to intervene and his parentage petition, the court
ruled that it would allow E.M.H. to file his petition to intervene. It
dismissed E.M.H.'s parentage petition pursuant to section 2-619 of the Code of
Civil Procedure (735 ILCS 5/2-619 (West 1996)) finding that E.M.H.'s petition
was barred because E.M.H. failed to register with the Putative Father Registry
within 30 days of the child's birth as required by section 12.1 of the
Adoption Act (750 ILCS 50/12.1 (West 1994)).[fn1] On July 3, 1996, the court
entered its order granting E.M.H.'s motion for leave to intervene and for
blood tests; granted E.M.H. leave to file his parentage petition; granted the
petitioner's motion to dismiss E.M.H.'s parentage petition with prejudice; and
ordered disclosure of the blood test results to E.M.H. and the petitioners
through their attorneys. By separate order, also on that date, the court
entered judgment on the amended adoption petition adjudicating the child to be
the legal child of K.J.R. and D.F.R. and changing his name to H.D.R. E.M.H.
filed his notice of appeal on July 30, 1996.
On appeal, E.M.H., the putative father, argues that the trial court
erred in dismissing his parentage petition by reason of his failure to comply
with the provisions of the Adoption Act regarding the timely registration with
the Putative Father Registry. E.M.H. contends that his failure to register
should be excused because of the biological mother's misrepresentation
concerning the identity of the child's father. E.M.H. alternatively argues
that the putative father registry provisions of the Adoption Act deprived him
of his constitutional equal protection and due process rights.
I. Putative Father Registry Provisions
Section 12.1 of the Adoption Act, which became effective on July 3,
1994, created the Putative Father Registry to be maintained by the Department
of Children and Family Services. 750 ILCS 50/12.1 (West 1994). The purpose
of that registry is to determine the identity and location of putative fathers
whose paternity has not been established in order that they may be given
notice of any ensuing adoption proceedings. 750 ILCS 50/12.1 (West 1994).
Subsection (b) of that provision states that the "putative father may register
with the Department before the birth of the child but shall register no later
than 30 days after the birth of the child." 750 ILCS 50/12.1(b) (West 1994).
Subsection (g) of that provision further states:
"Except as provided in Section 8(b) of this Act,[fn2] a putative
father who fails to register with the Putative Father Registry as
provided in this Section is barred from thereafter bringing or
maintaining any action to assert any interest in the child, unless
he proves by clear and convincing evidence that:
(1) it was not possible for him to register within the time
period specified in subsection (b) of this Section; and
(2) his failure to register was through no fault of his
own; and
(3) he registered within 10 days after it became possible
for him to file.
A lack of knowledge of the pregnancy or birth is not an acceptable
reason for failure to register." 750 ILCS 50/12.1(g) (West 1994).
This provision and other related amendatory provisions were enacted by
the Illinois legislature in response to the Illinois Supreme Court case of In
re Petition of Doe, 159 Ill. 2d 347, 638 N.E.2d 181 (1994). House Bill 2424,
which was approved and signed into law on July 3, 1994, seventeen days after
Doe was filed, amended various statutory provisions affecting newborn
adoptions, older child adoptions, foster families, juvenile court records and
interstate child support. Pub. Act 88-550, eff. July 3, 1994. See generally
S. Bostick, The Baby Richard Law: Changes to the Illinois Adoption Act, 82
Ill. Bar J. 654 (1994) [hereinafter S. Bostick, The Baby Richard Law]. By
adding and amending various provisions of the Adoption Act, the legislature
sought to balance the interests of the biological mother, the putative father,
the adopting parents and the child; specifically indicating, however, that the
best interests and welfare of the child were to be of paramount consideration.
750 ILCS 50/20a (West 1994). With respect to the parental rights of putative
fathers, the statute protects those putative fathers who have taken certain
specified actions to preserve their rights. See 750 ILCS 50/8(b), (c) (West
1994); 750 ILCS 12a1.5(c) (West 1994) recodified at 750 ILCS 7C (West 1996).
If the putative father has not so acted within the time limits provided by
statute, the child's right to a stable environment and finality becomes
paramount; and the putative father loses all right to intervene in adoption
proceedings or to vacate finalized adoption orders. See Lehr v. Robertson,
463 U.S. 248, 77 L. Ed. 2d 614, 103 S. Ct. 2985 (1983).
In accordance with that rationale, subsection 12.1(h) of the Adoption
Act provides that the failure to timely register results in a waiver and
surrender of any right to notice of any hearing in any judicial proceeding for
the adoption of the child; negates the requirement of consent and surrender of
that person to the adoption; constitutes an abandonment of the child; and is
prima facie evidence of sufficient grounds to support termination of such
father's parental rights under the Adoption Act. 750 ILCS 50/12.1(h) (West
1994). For other putative father registry statutes see, e.g., Ariz. Rev.
Stat. Ann. 8-106.01 (Supp. 1996); Ark. Code Ann. 9-9-224, 20-18-701 through
20-18-705 (Michie 1993 & Supp. 1995); Ind. Code Ann. 31-19-5-1 through 31-
19-5-25 (Michie 1997); N.M. Stat. Ann. 32A-5-19, 32A-5-20 (Michie 1995 &
1977 Supp.); N.Y. Dom. Rel. Law 111-a (McKinney 1988 & 1997 Supp.), N.Y. Soc.
Serv. Law 373-c (McKinney 1992).
E.M.H. does not dispute the fact that he did not register with the
Putative Father Registry. He argues, however, that the registration
requirement is inapplicable here, where it is alleged that the biological
mother committed fraud in identifying the biological father to be someone
other than E.M.H. In support of this argument, E.M.H. concedes that mere lack
of knowledge of pregnancy or birth would not excuse registration. He
contends, however, that here the lack of knowledge was of his paternity and
that this lack of knowledge was attributable to H.K.'s fraud.
We first note that the characterization of the biological mother's
misrepresentation as fraudulent does not conform with the traditional
definition of that term since the biological mother is not a party to this
proceeding and, in opposing the adoption, aligned herself with the interests
of E.M.H. rather than the adoptive parents. There is no allegation of any
fraudulent conduct on the part of the adoptive parents, unlike the
circumstances alleged in In re Petition of Doe, 159 Ill. 2d 347, 638 N.E.2d 181 (1994), where the court found that the adoptive parents participated in an
attempt to conceal the birth of the child from the father.
More overridingly, however, the birth mother's misrepresentation in this
case would not sufficiently justify reliance on the part of the father so as
to excuse his obligation to register. See City of Chicago v. American
National Bank & Trust Co., 233 Ill. App. 3d 1031, 599 N.E.2d 1126 (1992)
(person charging another with fraud must show that his reliance upon
fraudulent representation was reasonable under the circumstances). Despite
H.K.'s initial statement to E.M.H. that he was not the father, E.M.H. had
independent knowledge of the fact that he could have been the father. By his
own admissions in his motion to intervene and in his parentage petition,
E.M.H. stated that he had had extended sexual relations with H.K. during the
time span within which the child could have been conceived and that E.M.H.
knew of H.K.'s ensuing pregnancy before the birth of the child. Moreover,
E.M.H.'s statement that he "believed" that he could be the father of H.K.'s
child, inferentially admits to the fact that his sexual relations with H.K.
occurred without the use of any prophylaxis. See S. Bostick, The Baby Richard
Law, 82 Ill. Bar J. 654, 657 stating,
"A father's lack of knowledge of the pregnancy or birth does not
justify his failure to register -- the drafters observed the
biological imperative that the father participated in the child's
conception, and therefore was on notice that a child could have
been born nine months hence."
We further note that, given these circumstances, there was no
demonstrated basis for E.M.H. to presume that H.K. could have known with any
reasonable certainty that he was not the father of her child. All that H.K.
reasonably could have been presumed to know is that a man other than E.M.H.
could also have shared in the possibility of being the father of her child.
There is no basis to condone reliance by E.M.H. upon H.K.'s categorical
assertion that he was not the father. Such knowledge of E.M.H. of possible
parentage, albeit uncertain, is sufficient to invoke the registration
provisions of the Putative Father Registry statute. 750 ILCS 50/12.1 (West
1994).
The Putative Father Registry statute does not require certainty by the
putative father that he is in fact the biological father at the time he
registers. The statute defines "putative father" as:
"a man who may be a child's father, but who (1) is not married to
the child's mother on or before the date that the child was or is
to be born and (2) has not established paternity of the child in a
court proceeding before the filing of a petition for the adoption
of the child." (Emphasis added.) 750 ILCS 50/1(R) (West 1994).
By its very definition, a putative father is one who has not established
paternity and, thus, would not know with certainty whether he is in fact the
biological father until court proceedings are initiated by the filing of a
parentage petition and the establishment of paternity thereafter. All that a
male need know in order to register in accordance with the statute is that he
may be the father.
While the result in a given case may seem unduly stringent, one must
look to the overall policy and purpose of the statute which the court is
called upon to enforce. As noted, the registry requirements of the Adoption
Act seek to balance the interests of the putative father with the interests of
the adoptive parents and, more overridingly, the child, whose interests are
paramount (750 ILCS 50/20a (West 1994) ("[t]he best interests and welfare of
the person to be adopted shall be of paramount consideration in the
construction and interpretation of this Act")). See S. Bostick, The Baby
Richard Law, 82 Ill. Bar J. at 656. Thus, the statute purports only to ensure
that a putative father, who registers promptly, that is, within the time
limits specified in the statute, is notified of adoption proceedings so that
he can assert his parental rights while those proceedings are pending. 750
ILCS 50/12.1 (West 1994). Concomitantly, it also purports to ensure the
child's right to a stable environment by limiting judicial discretion with
respect to the termination of the putative father's parental rights when those
rights are first asserted after the statutory time limits for registration
have expired. See 750 ILCS 50/20a (West 1994) ("[i]t is in the best interests
of persons to be adopted that this Act be construed and interpreted so as to
not result in extending time limits beyond those set forth herein"). See also
S. Bostick, The Baby Richard Law, 82 Ill. Bar J. 654. The registration
requirement avoids the injection of uncertainty and instability in the
adoption process.[fn3]
Here, E.M.H. knew that he had had sexual relations with the birth mother
and could have exercised his right to register from the date of those acts
until 30 days after the day the child was born. He has not alleged that it
was impossible for him to register during that time. Notwithstanding H.K.'s
initial disclaimer of E.M.H.'s parentage, there can be no dispute that E.M.H.
had substantial reason to suspect the possibility of his parentage since he
knew of the pregnancy and of his extended sexual cohabitation with H.K. during
the window period of conception. There would be no basis to warrant reliance
on the mere disclaimer of H.K. without further investigation and proof. At
best, such a disclaimer would simply act to give transitory reassurance to a
potential father that the mother did not, as of that time, herself intend to
involve him, legally or otherwise, in the responsibility of parentage. That
is not sufficient to exculpate the putative father's duty to register. As
noted, the Adoption Act provides that "lack of knowledge of pregnancy or birth
is not an acceptable reason for failure to register." 705 ILCS 50/12.1(g)
(West 1994). If anything, this denotes that the Adoption Act requires
positive effort by the putative father to ascertain whether he is the
biological father and to pursue his parenting rights and obligations
notwithstanding the silence, passivity or miscommunication of the mother with
regard to paternity.
Lastly, while we need not reach this issue, we note that even if E.M.H.
reasonably could have relied on H.K.'s misrepresentation and even if such
reliance could have excused E.M.H. from registering during the statutory time
period, he would not have been excused permanently from registering. The
Adoption Act explicitly states that, if it was impossible for the putative
father to register before the expiration of 30 days following the birth of the
child, he must register within ten days after it becomes possible for him to
do so. 705 ILCS 50/12.1(g)(3) (West 1994). Here, E.M.H. admitted that he
learned of H.K.'s alleged fraud on January 31, 1995. Nevertheless, E.M.H.
failed to register within ten days of that date or for that matter at any time
thereafter.
Thus, as E.M.H. failed to timely register and as E.M.H. did not allege
facts that would bring him within the exceptions to section 12.1(g) of the
Adoption Act, he was barred from bringing or maintaining his parentage
petition and that petition was properly dismissed pursuant to section 2-
619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 1996)).
750 ILCS 50/12.1(g) (West 1994).
II. Constitutional Claims
E.M.H. alternatively argues that if the provisions of section 12.1(g)
and (h) of the Adoption Act operate to deprive him of his right to proceed
with his parentage petition, then those provisions are unconstitutional
because they deprive him of equal protection of the laws and due process.
E.M.H. argues that he is denied equal protection because he is treated
differently from fathers whose parental rights are regulated by the adoption
provisions found within the Illinois Juvenile Court Act of 1987 (the Juvenile
Court Act) (705 ILCS 405/1-1 et seq. (West 1994)). He also argues that he is
deprived of a liberty interest to have personal contact with his child and
that he was deprived of that interest without procedural due process.
A. Equal Protection
In accordance with the equal protection guarantees of the United States
Constitution (U.S. Const., amend. XIV), a State may not draw distinctions
based solely on differences that are irrelevant to a legitimate governmental
objective. Lehr v. Robertson, 463 U.S. 248, 77 L. Ed. 2d 614, 103 S. Ct. 2985
(1983); Nevitt v. Langfelder, 157 Ill. 2d 116, 623 N.E.2d 281 (1993). The
legitimate governmental objective with respect to the enactment of adoption
laws is to promote the best interest of the child, to protect the rights of
interested third parties and to ensure promptness and finality. Lehr, 463 U.S. at 265, 103 S. Ct. at 2995. Those interests were specifically recognized
in the stated purpose to Public Act 88-550, the legislation creating the
Putative Father Registry and amending various provisions within the Adoption
Act relative to the rights of putative fathers. Pub. Act 88-550, eff. July 3,
1994. See also In re Joseph B., 258 Ill. App. 3d 954, 630 N.E.2d 1180 (1994)
(purpose of Adoption Act is to promote the finality and stability of
adoptions).
As noted above, E.M.H. argues that section 12.1 of the Adoption Act is
unconstitutional because it subjects him to disparate treatment from other
similarly situated putative fathers whose parental rights are regulated by the
adoption provisions found within the Juvenile Court Act (705 ILCS 405/1-1 et
seq. (West 1994)). E.M.H. cites to the putative father notice provision in
section 2-30 of the Juvenile Court Act (705 ILCS 405/2-30 (West 1994)) which
governs the adoption of children found to be abused, neglected or dependent.
He notes that the notice provided to a putative father under that Act allows
the putative father 30 days from his receipt of the notice to declare
paternity or request notification of further proceedings. See 705 ILCS 405/2-
30.2 (West 1994). E.M.H. further notes that he was treated differently under
the Adoption Act because he was not given notice or a 30-day time limit
thereafter to file a paternity petition. E.M.H. contends that the Adoption
Act and the Juvenile Court Act are to be considered in pari materia as parts
of an overall statutory scheme that promotes the best interests of children.
He contends that the differential treatment afforded putative fathers under
the Adoption Act, when considered in conjunction with the Juvenile Court Act,
lacked rationality and is unconstitutional. We disagree.
First, we do not perceive that putative fathers are treated disparately
under each of these Acts. The Adoption Act specifically states that it should
be construed in concert with the Juvenile Court Act. See 750 ILCS 50/2.1
(West 1994). Moreover, section 2-29 of the Juvenile Court Act, which allows
for the adoption of abused, neglected or dependent minors who are made wards
of the court, specifically incorporates by reference many of the provisions in
the Adoption Act including those with respect to the requirements for notice
and consent. See, e.g., 705 ILCS 405/2-29(1) (West 1996) ("a ward of the
court under this Act *** may be the subject of a petition for adoption under
[the Adoption Act]"); 2-29(2) (requiring proof of unfitness of non-consenting
parent as defined in Adoption Act); 2-29(3) (requiring written consent of
parent to court order authorizing the guardian to consent to adoption in form
provided under Adoption Act).[fn4] See also In re J.M., 245 Ill. App. 3d
984, 613 N.E.2d 1346 (1993) (stating that Juvenile Court Act is to be
construed in concert with the Adoption Act).
Under section 2-29 of the Juvenile Court Act, adoption of abused,
neglected or dependent minors who are made wards of the court is allowed to
proceed, depending upon the circumstances, under three alternative routes: by
the court's consent (705 ILCS 405/2-29(1) (West 1994)); by the consent of the
parents "in the manner required by such [the Adoption] Act" (705 ILCS 405/2-
29(1) (West 1994)); or by the consent of the guardian of the person who is
appointed by the court with the consent of the parents or upon the court's
finding of parental unfitness as defined in section 1 of the Adoption Act (705
ILCS 405/2-29(2) (West 1994)). Thus, when the adoption under the Juvenile
Court Act occurs pursuant to the consent of the parents, it must proceed "in
the manner required by [the Adoption] Act" (705 ILCS 405/2-29(1) (West 1994)).
The consent necessary under the Adoption Act would of necessity be the consent
of those parents identified in subsections 8(b) and (c) of the Adoption Act,
namely, the mother of the child and the father who falls within one of the
categories delineated in section 8(b)(1)(B) or 8(c)(1)(B) of the Adoption Act
(750 ILCS 50/8(b)(1)(B), 8(c)(1)(B) (West 1994)). Specifically included
within those delineations is the putative father who registers with the
Putative Father Registry and who has commenced legal proceedings to establish
paternity. 750 ILCS 50/8(b)(1)(B)(vii), 8(c)(1)(B)(vii) (West 1994).[fn5]
Section 2-30 of the Juvenile Court Act, which as mentioned previously
deals with the notice entitlement to putative fathers, does not explicitly
reference the Adoption Act. That provision is virtually identical to the
notice of putative father provision in section 12a of the Adoption Act.[fn6]
Under both provisions, that notice is given upon the written request of any
interested party, namely, persons intending to adopt the child, a child
welfare agency with whom the mother has placed or has given notice of her
intention to place the child for adoption, the mother of the child, or any
attorney representing an interested party. 705 ILCS 405/2-30 (West 1994); 750
ILCS 50/12 A. 1 (West 1994). The form and content of the notice, as specified
under both provisions, informs the putative father that, as the alleged father
of the child, he has certain legal rights with respect to the child and
further informs the putative father that if he wishes to retain those rights
he must file with the Clerk of the Circuit Court a declaration of paternity, a
copy of which is enclosed with the notice, within 30 days of the receipt of
the notice stating that he is the father of the child, that he intends to
retain his legal rights with respect to the child, or that he requests to be
notified of any further proceedings with respect to custody or adoption of the
child. The notice also advises the putative father that a failure to file the
declaration of paternity or a request for notice results in the termination of
whatever legal rights he may have with respect to the child. See 705 ILCS
405/2-30.2 (West 1994); 750 ILCS 50/12 A. 2 (West 1994). In accordance with the
notice provisions of both statutes, if the putative father does not file a
declaration for paternity within 30 days, he need not be made a party to or be
given notice of any adoption proceeding. 705 ILCS 405/2-30.4 (West 1994); 750
ILCS 50/12 A. 4 (West 1994).
While section 2-30 of the Juvenile Court Act on its face does not
purport to except those unregistered putative fathers who would be required to
register under section 12.1 of the Adoption Act, neither are such putative
fathers excepted on the face of section 12a of the Adoption Act. Yet one can
only conclude that such putative fathers who have failed to register would not
be entitled to notice under section 12a of the Adoption Act since it is clear
from the content of the notice that it is intended only for putative fathers
whose consent would be required. Since it also is clear from section 12.1(h)
of the Adoption Act that such a right to consent would be waived by a failure
to register, there would be no purpose served by providing those putative
fathers with a section 12a notice. Likewise, such putative fathers who have
failed to register would not have a right to consent to adoptions under the
Juvenile Court Act pursuant to subsections 8(b)(1)(B)(vii) and 8(c)(1)(B)(vii)
of the Adoption Act which, as noted above, are incorporated by reference into
the Juvenile Court Act pursuant to section 2-29(1) of that Act.
Thus, once it is determined under section 2-29 of the Juvenile Court Act
that no consent is required of a putative father because that alleged father
does not satisfy one of the categories set forth in section 8 of the Adoption
Act, the notice requirements to a putative father under section 2-30 of the
Juvenile Court Act, just as the notice requirements under section 12a of the
Adoption Act, become inapplicable. The right to consent, once excluded under
section 12.1(h) of the Adoption Act and, correspondingly, by reference under
section 2-29(1) of the Juvenile Court Act, is not restored by the ensuing
notice provisions of section 12a and 2-30, respectively, simply because they
do not specifically refer back to those exclusions.[fn7] Rather, as
discussed, the most cogent construction of the notice provision at section 12a
of the Adoption Act and, correspondingly, section 2-30 of the Juvenile Court
Act, as reflected in their substantially identical content, is that they will
follow the right to consent as carved out in subsections 8(b) and (c) of the
Adoption Act and the corresponding section 2-29(1) of the Juvenile Court Act.
Accordingly, a putative father who, like E.M.H., does not register and
initiate paternity proceedings thereafter would not be entitled to section 2-
30 notice under the Juvenile Court Act; and the purported difference in the
notice requirements of the two Acts argued by E.M.H. does not exist.
Moreover, even if there was no incorporation by reference of the
provisions of the Adoption Act into the Juvenile Court Act, there would be no
violation of equal protection. The Equal Protection Clause does not require
the legislature to address all areas of a problem that it seeks to reform. As
stated in Harris v. Manor Healthcare Corp., 111 Ill. 2d 350, 372-73, 489 N.E.2d 1374, 1384 (1986):
"A legislature is 'allowed to take reform "one step at a time,
addressing itself to the phase of the problem which seems most
acute to the legislative mind" [citation]; and a legislature need
not run the risk of losing an entire remedial scheme simply
because it failed, through inadvertence or otherwise, to cover
every evil that might conceivably have been attacked.' (McDonald
v. Board of Election Commissioners (1969), 394 U.S. 802, 809, 89 S. Ct. 1404, 1409, 22 L. Ed. 2d 739, 746; see also Chicago
National League Ball Club, Inc. v. Thompson (1985), 108 Ill. 2d 357, 367, 483 N.E.2d 1245; Rockford Drop Forge Co. v. Pollution
Control Board (1980), 79 Ill. 2d 271, 281, 402 N.E.2d 602.)"
In Harris, the court upheld a law that applied to private nursing homes and
exempted State-operated nursing homes stating that the legislature could
believe that the protections of the statute were more urgently needed by
private nursing home residents than State-operated nursing home residents.
Following this principle, the Illinois Supreme Court in People v. Esposito,
121 Ill. 2d 491, 521 N.E.2d 873 (1988), held that there was no equal
protection violation where the legislature elected to penalize persons who
drive with a blood-alcohol concentration of 0.10 with summary suspension while
not requiring summary suspension for other categories of impaired drivers.
The court found that the General Assembly enacted the summary suspension
scheme in response to "widespread concern over the threat which drunk drivers
pose to safety and human life in our society." Esposito, 121 Ill. 2d at 503,
521 N.E.2d at 878. In reliance on Harris, the court found that the equal
protection guarantee did not prohibit the legislature from choosing to focus
particularly on the hazard posed by drunk drivers. Accord People v. Mondhink,
194 Ill. App. 3d 806, 551 N.E.2d 755 (1990) (no denial of equal protection
where legislature enacted an enhanced penalty for repeat offense of driving
while license revoked where original revocation was predicated on certain
offenses and not others; court found that legislature limited enhancement
provision to predicate offenses posing the greatest threat to the motoring
public).
Here, the amendments to the Adoption Act that resulted from the passage
of House Bill 2424 were designed to avoid the injection of uncertainty and
instability in adoptions arising under the Adoption Act seen as an outflow
from In re Petition of Doe, 159 Ill. 2d 347, 638 N.E.2d 181 (1994). See
generally S. Bostick, The Baby Richard Law, 82 Ill. Bar J. 654 (1994). In its
effort to accomplish that result, the legislature turned first to the Adoption
Act, the avenue by which most adoptions occur. It is common knowledge that
adoptions in this State are initiated primarily under the Adoption Act, as was
the adoption in In re Petition of Doe, rather than under the Juvenile Court
Act. It is well known that as a matter of practice in Cook County all
adoptions are initiated in the county division of the circuit court under the
Adoption Act rather than in the juvenile division of the circuit court under
the Juvenile Court Act. Thus, as such, the amendments to the Adoption Act
would suffice to cover the overwhelming number of adoptions that take place in
this State.
B. Due Process
E.M.H. next contends that section 12.1 of the Adoption Act deprived him
of a liberty interest to have personal contact with his child and that he was
deprived of that interest without notice and opportunity to be heard.
The relationship between parent and child is constitutionally protected
by the Due Process Clause of the Fourteenth Amendment of the United States
Constitution (U.S. Const., amend. XIV). E.g., Lehr v. Robertson, 463 U.S. 248, 77 L. Ed. 2d 614, 103 S. Ct. 2985 (1983); Quilloin v. Walcott, 434 U.S. 246, 54 L. Ed. 2d 511, 98 S. Ct. 549 (1978); Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972). However, the parent's right to
maintain his or her parental relationship with the child depends not on the
mere biological connection but on the existence of a relationship with the
child that is more enduring. Lehr, 463 U.S. at 260, 103 S. Ct. at 2992 citing
Caban v. Mohammed, 441 U.S. 380, 397, 60 L. Ed. 2d 297, 99 S. Ct. 1760, 1770
(1979) (Stewart, J. dissenting). As stated in Lehr,
"When an unwed father demonstrates a full commitment to the
responsibilities of parenthood by 'com[ing] forward to participate
in the rearing of his child,' Caban, 441 U.S., at 392, 60 L. Ed. 2d 297, 99 S. Ct. 1760, his interest in personal contact with his
child acquires substantial protection under the Due Process
Clause. ***
The significance of the biological connection is that it
offers the natural father an opportunity that no other male
possesses to develop a relationship with his offspring. If he
grasps that opportunity and accepts some measure of responsibility
for the child's future, he may enjoy the blessings of the parent-
child relationship and make uniquely valuable contributions to the
child's development. If he fails to do so, the Federal
Constitution will not automatically compel a State to listen to
his opinion of where the child's best interests lie." 463 U.S. at
261-62, 103 S. Ct. at 2993-94.
Accord Father in Pima County Juvenile Action No. S-114487 v. Adam (In re
Appeal in Pima County Juvenile Severance Action No. S-114487), 179 Ariz. 86,
94, 876 P.2d 1121, 1129 (1994) ("an unwed father's parental rights do not
attain fundamental constitutional status unless he takes significant steps to
create a parental relationship").
In Lehr, the putative father raised a due process claim identical to
that which is raised in the instant case. The facts in that case showed that
father had very little contact with the child. He lived with the child's
mother before the child was born and visited the child in the hospital after
she was born. There appears to have been no contact thereafter. When the
child was two years old, her mother's husband petitioned to adopt her. No
notice of that proceeding was provided to the putative father; and the
adoption was approved. Thereafter, the putative father moved to vacate the
adoption order because he was not provided with notice.
The New York statutory scheme under review in Lehr required that notice
of adoption be given to seven categories of putative fathers who, as the Court
explained, were likely to have assumed some responsibility for the care of
their natural children. N.Y. Dom. Rel. Law 111-a(2) (McKinney 1977 and Supp.
1982-83). See Lehr, 463 U.S. at 263, 103 S. Ct. at 2994. Included as one of
the seven categories was the putative father who filed with the putative
father registry. N.Y. Dom. Rel. Law 111-a(2)(c). The Supreme Court reviewed
this notice provision and found that it adequately protected the appellant's
inchoate interest in establishing a relationship with his child. The Court
found that the statute was procedurally adequate because it did not exclude
responsible fathers and because "the qualification for notice [was not] beyond
the control of an interested putative father," finding that all the father
need do was mail a postcard to the putative father registry. Lehr, 463 U.S.
at 263-64, 103 S. Ct. at 2994-95. Finally, the Court stated that the New York
legislature's refusal to adopt a more "open-ended notice requirement" was not
arbitrary given the State's legitimate interest in "facilitating the adoption
of young children and having the adoption proceeding completed expeditiously."
Lehr, 463 U.S. at 264-65, 103 S. Ct. at 2995.
The Illinois adoption laws, like the New York statutes considered in
Lehr, provide a statutory scheme that protects the putative father's interest
in assuming a responsible role in the future of his child. As with the New
York statute, the Illinois Adoption Act provides a putative father registry
and requires that notice of adoption be given to those putative fathers who
assert their rights by filing with the registry. Compare 750 ILCS 50/12.1,
12 A. 1.5, 12 A. 2 (West 1994) with N.Y. Soc. Serv. Law 372-c (McKinney Supp.
1982-83) and N.Y. Dom. Rel. Law 111-a(2) (McKinney 1977 and Supp. 1982-83).
Also as in New York, Illinois has a legitimate state interest in limiting the
rights of putative fathers who do not grasp the opportunity to assume
responsibility for the child. That interest was expressed in prefatory
language in Public Act 88-550 as ensuring stable living environments for
children, according biological parents reasonable opportunities to acknowledge
parenthood and affording adoptive parents the ability to reasonably rely on
the adoption courts for timely completions of adoptions. See Pub. Act 88-550,
eff. July 3, 1994.
Here, as in Lehr, the putative father failed to register and did not
fall within any of the other statutory categories wherein he would have been
entitled to notice of the adoption proceedings. The putative father's
statutory right to receive notice was completely within his control as was his
right to commence legal proceedings to establish paternity. E.M.H., the
putative father, failed to act to preserve his inchoate interest in
establishing a relationship with his child by registering and initiating a
parentage action and thus, was not entitled to notice or opportunity to be
heard in the adoption proceedings. See also In re Appeal in Juvenile Action
No. JS-8490, 179 Ariz. 102, 876 P.2d 1137 (1994) (if a man has reasonable
grounds to know that he might have fathered a child, he must protect the
parental rights by investigating the possibility and acting appropriately);
Robert O. v. Russell K., 80 N.Y.2d 254, 640 N.E.2d 99, 590 N.Y.S.2d 37 (1992)
(unwed father with no knowledge of pregnancy or birth before adoption
finalized lacked due process liberty interest and right to notice and to
consent to adoption because he did not manifest a willingness to establish
relationship with child); In re Adoption of S.J.B., 294 Ark. 598, 745 S.W.2d 606 (1988) (where father not interested enough in outcome of sexual encounter,
due process not violated where statute did not require notice to him of
adoption). Thus, the Illinois adoption statute, like the New York statute
under review in Lehr, did not deprive E.M.H. of his due process rights
guaranteed by the United States Constitution.[fn8]
For the foregoing reasons, the judgment of the Circuit Court of Cook
County is affirmed.
Affirmed.
CAHILL and LEAVITT, JJ., concur.
[fn1]In point of fact, E.M.H. never registered with the
Putative Father Registry but only filed a parentage petition in
the circuit court which petition was filed more than 30 days
after the birth of the child.
[fn2]Subsection 12.1(g) of the Adoption Act was amended to
include section 8(c) as well as section 8(b) as exceptions. Pub.
Act 89-315, 5, eff. January 1, 1996.
[fn3]We note that the interest in finality and stability in
the adoption process is lessened where, as here, the unregistered
putative father acts beyond the time limits of section 12.1 of
the Adoption Act but while the adoption action is pending.
However, the Adoption Act does not treat differently those
unregistered putative fathers who act to preserve their parental
interests while the adoption proceedings are pending from those
who act after the adoption has been finalized. Therefore, the
registration requirements which apply to interventions after the
adoption decree has been finalized must be applied
correspondingly to interventions that take place during the
pendency of the adoption action.
[fn4]Since the references in section 2-29 of the Juvenile
Court Act cite to the Adoption Act "as now or hereafter amended"
or "as amended," it is clear that the Juvenile Court Act, as the
incorporating statute, would incorporate any subsequent additions
or modifications of the Adoption Act as well as its preexisting
provisions. See Kloss v. Suburban Cook County Tuberculosis
Sanitarium Dist., 404 Ill. 87, 88 N.E.2d 89 (1949). Thus, the
amendments made to the Adoption Act by Public Act 88-550, which
are the subject of the instant appeal, would be incorporated into
the Juvenile Court Act as so expressed in the latter statute.
[fn5]It is undisputed that E.M.H does not come within any of
the other categories of putative fathers whose consent is
required. Those categories include: the father who is married to
the mother of the child on the date of birth of the child, except
for a husband or former husband who has been found by a court of
competent jurisdiction not to be the biological father of the
child; the father of the child under judgment for adoption or an
order of parentage; in the case of a child placed for adoption
who is less than six months of age, the father who openly lived
with the child, the child's biological mother or both and who
held himself out to be the biological father during the first 30
days following the birth of the child; in the case of a child
less than six months of age, the father who made a good faith
effort to pay a reasonable amount of birth expenses and financial
support before expiration of 30 days following the birth of the
child; in the case of a child more than six months old, the
father who has maintained substantial and continuous or repeated
contact with the child as manifested by payment of reasonable
child support, by visitation at least monthly, or regular
communication with the child; and in the case of a child more
than six months old, the father who has openly lived with the
child for a period of six months within the one year period
immediately prior to placement of the child for adoption and
openly held himself out to be the father of the child. 750 ILCS
8(b)(1)(B)(i) through (vi), 8(c)(1)(B)(i) through (vi) (West
1994).
[fn6]At the time the adoption proceedings were initiated in
the instant case, section 12a of the Adoption Act (750 ILCS
50/12a (West 1994)) differed from section 2-30 of the Juvenile
Act in that it also contained a separate notice requirement for
putative fathers whose consent was not needed but who were
entitled to notice of the adoption proceedings. That provision,
section 12 A. 1.5, was enacted as part of Public Act 88-550, and
became effective July 3, 1994. Effective January 1, 1996,
subsection 1.5 of section 12a was transferred to section 7 of
that Act and is now codified as 750 ILCS 50/7C (West 1996). See
Pub. Act 89-315, 5, eff. January 1, 1996 (amending 750 ILCS
50/7, 12a (West 1994)). As a result of this change, sections 2-
30 of the Juvenile Court Act and 12a of the Adoption Act are
almost identical in language and purpose. For purposes of this
opinion, our reference to section 12a will refer to that
provision as it exists without former subsection 1.5 which is now
incorporated in section 7 of the Adoption Act. The impact, if
any, of former subsection 1.5 is further discussed infra, at
footnote 7.
[fn7]This analysis is further corroborated by the fact that
section 12 A. 1.5 of the Adoption Act (750 ILCS 50/12 A. 1.5 (West
1994) relocated at 750 ILCS 50/7C (West 1996), see supra, at
footnote 6) specifically provides for a separate notice to
certain putative fathers who have forfeited their rights to
consent. Under that provision, those putative fathers are
entitled only to notice of adoption proceedings in order that
they might present evidence relevant to the best interests of the
child but in no event are they entitled to assert a right of
consent. A putative father who registers but does not initiate a
parentage action within 30 days of that registration is one of
the designated recipients of this notice. It would therefore be
nonsensical to presume that a putative father who loses the right
to consent because he never registered could have that right
restored under section 12 A. 2 (750 ILCS 50/12 A. 2 (West 1994)),
while the putative father who registers but fails to file a
parentage petition is clearly denied the right to consent under
the explicit language of section 12 A. 1.5.
[fn8]In a motion taken with the case, E.M.H. moved to
supplement the record on appeal with the blood test results that
became available after his notice of appeal had been filed. The
petitioners filed objections to that motion. E.M.H.'s motion to
supplement the record is denied. First, we note that the
supplemental matter that is the subject of the motion did not
exist nor was it considered by the trial court prior to the
court's entry of its final orders. See Knight's Prairie Hunting
Club v. Holmes, 263 Ill. App. 3d 455, 636 N.E.2d 29 (1994)
(Supreme Court Rule 329 (155 Ill. 2d R. 329) allows parties to
supplement the record with documents that were before the trial
court). More convincingly, however, is the fact that, even if
the results were available to the court prior to entry of final
judgment, those results would have had no bearing on that
judgment or the appeal taken from that judgment. For the reasons
discussed in part I of this opinion, the existence of a
biological link between E.M.H. and the child is not dispositive.
The issue here was whether E.M.H. lost any rights he may have had
with respect to the child because he failed to register with the
Putative Father Registry and because that failure was not excused
by section 12.1 of the Adoption Act. 750 ILCS 50/12.1 (West
1994). Although the court ordered the blood testing, it did so
while petitioners' motion to dismiss E.M.H.'s motions and
parentage petition were pending. Because of the application of
section 12.1 of the Adoption Act, the question of parentage was
never a dispositive issue before the trial court and therefore
remains moot as to proceedings in this court as well.
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