                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




               In re Paternity of an Unknown Minor, 2011 IL App (1st) 102445




Appellate Court            In re PATERNITY OF AN UNKNOWN MINOR (Daniel Sandoval,
Caption                    Petitioner-Appellee, v. Brenda Botello, Respondent-Appellant (Jose Luis
                           Roman, Third-Party Respondent)).



District & No.             First District, Sixth Division
                           Docket No. 1–10–2445


Filed                      June 30, 2011


Held                       Respondent was properly found in contempt for refusing to comply with
(Note: This syllabus       an order to submit herself and her child to DNA testing in petitioner’s
constitutes no part of     action alleging that he was the father of respondent’s child, even though
the opinion of the court   third-party respondent signed an acknowledgment of paternity when the
but has been prepared      child was born, since the acknowledgment did not deprive the trial court
by the Reporter of         of authority to determine paternity of the child by establishing a father-
Decisions for the          child relationship pursuant to section 5 of the Illinois Parentage Act;
convenience of the         rather, the language of section 7(a) of the Act permits a man alleging that
reader.)
                           he is the father of a child to bring an action to determine paternity,
                           regardless of any presumption of paternity by another man, petitioner had
                           standing to pursue his claim, and the trial court had authority under
                           section 7(a) to order respondent to submit herself and the child to DNA
                           testing.


Decision Under             Appeal from the Circuit Court of Cook County, No. 09–D–79068; the
Review                     Hon. Martha A. Mills, Judge, presiding.
Judgment                    Affirmed and remanded.


Counsel on                  James D. Rosas, of Chicago, for appellant.
Appeal
                            Patricia A. Rangel, Dianne C. Elman, and Rebecca K. Rangel, all of
                            Rangel, Rangel & Associates, of Chicago, for appellee.


Panel                       JUSTICE McBRIDE delivered the judgment of the court, with opinion.
                            Justices Cahill and R. Gordon concurred in the judgment and opinion.



                                               OPINION

¶1           Brenda Botello appeals from an order of the circuit court of Cook County finding her in
        contempt for refusing to comply with an order to submit herself and her one-year-old son to
        DNA testing in a paternity action brought by Daniel Sandoval. The trial judge ordered the
        test after Sandoval filed a verified petition alleging he was the child’s father and after Botello
        admitted to a past sexual relationship with Sandoval. Sections 7(a) and 11(a) of the Illinois
        Parentage Act of 1984 provide that when “a man *** alleging himself to be the father of the
        child” files a verified petition to establish paternity and requests a “deoxyribonucleic acid
        (DNA) test[ ] to determine inherited characteristics,” the court must order the testing. 750
        ILCS 45/7(a), 11(a) (West 2008) (Act). Botello declined to comply with the court order, on
        grounds that when Jose Luis Roman signed a voluntary acknowledgment of paternity when
        the child was born, Roman “conclusive[ly]” established a father-child relationship pursuant
        to section 5 of the Act (750 ILCS 45/5 (West 2008)) and deprived the court of authority to
        determine paternity of the child by another man. We consider this argument on appeal.
¶2           The purpose of the Act is to “further the public policy of Illinois to ‘recognize[ ] the right
        of every child to the physical, mental, emotional and monetary support of his or her parents,’
        without regard to the parents’ marital status.” In re the Parentage of John M., 212 Ill. 2d 253,
        263, 817 N.E.2d 500, 506 (2004) (quoting 750 ILCS 45/1.1, 3 (West 2002)). Therefore,
        under the Act, a father-child relationship may be established by presumption (750 ILCS
        45/5(a) (West 2008)), by consent (750 ILCS 45/6 (West 2008)), or by judicial determination
        (750 ILCS 45/7 (West 2008)).
¶3           Section 5(a) of the Act provides for a presumption of a father-child relationship to arise
        under two scenarios, the first being when a man and the child’s natural mother are or have
        been married, and the second being when the man and woman execute an acknowledgment
        of paternity. 750 ILCS 45/5(a) (West 2008). Section 5(b) specifies that when the presumption
        arises due to marriage, it is a rebuttable presumption that may be refuted “only by clear and
        convincing evidence,” and that when the presumption arises due to a voluntary


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     acknowledgment, it “is conclusive, unless the acknowledgment of parentage is rescinded
     [within 60 days].” (Emphasis added.) 750 ILCS 45/5(b) (West 2008). “A rebuttable
     presumption is one that ‘may be overcome by the introduction of contrary evidence’
     [citation], while a conclusive presumption is one that ‘cannot be overcome by any additional
     evidence or argument’ [citation].” People ex rel. Department of Public Aid v. Smith, 212 Ill.
     2d 389, 405, 818 N.E.2d 1204, 1213 (2004). In other words, the legislature chose to give
     disparate treatment to the two groups of presumed fathers. In Smith, the supreme court
     explained why this was so:
             “A man who voluntarily acknowledges paternity signs an acknowledgment form
             advising him of his rights and specifically informing him that he is accepting the
             responsibility of being a parent to the child, that he has a right to genetic testing, and
             that he is waiving that right by signing the voluntary acknowledgment. Thus, a
             presumed father who signs a voluntary acknowledgment is in an entirely different
             position from a man who simply assumes he is the child’s father because of his
             marriage to the child’s mother. Unlike a man presumed to be a child’s father [due to
             marriage], a man who signs a voluntary acknowledgment of paternity specifically
             agrees to forgo any further inquiry into whether he is the child’s biological father and
             to assume the responsibility for being a parent to the child. Clearly, it would be
             unreasonable to allow a man in this position to undo his voluntary acknowledgment
             years later on the basis of DNA test results, when his paternity was based not on a
             mere marital presumption that he was the child’s father but on his conscious decision
             to accept the legal responsibility of being the child’s father. This is obviously the
             reason that the legislature chose to make the marital presumptions rebuttable and the
             voluntary acknowledgment presumptions conclusive.” Smith, 212 Ill. 2d at 405-06,
             818 N.E.2d at 1214.
¶4       The voluntary, unconditional acceptance of the role of parent is as legally binding on the
     man as a judicial determination based on evidence. In re Parentage of G.E.M., 382 Ill. App.
     3d 1102, 1109, 890 N.E.2d 944, 954 (2008). A presumed father has standing to challenge his
     voluntary acknowledgment of paternity only on the basis of fraud, duress, or material mistake
     of fact, and he would have to meet the standards of section 2–1401 of the Code of Civil
     Procedure. G.E.M., 382 Ill. App. 3d at 1117, 890 N.E.2d at 954 (citing Smith, 212 Ill. 2d at
     399, 818 N.E.2d at 1205; Department of Public Aid ex rel. Howard v. Graham, 328 Ill. App.
     3d 433, 435-36, 766 N.E.2d 272 (2002)); 735 ILCS 5/2–1401 (West 2008). See also 410
     ILCS 535/12(7) (West 2008) (“An acknowledgment of paternity *** may be challenged in
     court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof
     upon the challenging party. Pending outcome of a challenge to the acknowledgment of
     paternity, the legal responsibilities of the signatories shall remain in full force and effect,
     except upon order of the court upon a showing of good cause.”). Thus, under the Act,
     “fatherhood is not always created by pure genetics.” G.E.M., 382 Ill. App. 3d at 1109, 890
     N.E.2d at 953.
¶5       In this case, one day after Botello gave birth to a son on December 20, 2007, she and
     Roman signed an Illinois voluntary acknowledgment of paternity form, and shortly after that,
     Cook County issued a birth certificate giving the child Roman’s surname. On January 15,

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     2009, which was more than 60 days later, Sandoval filed the instant paternity suit. As we
     summarized above, when Botello conceded she had a sexual relationship with Sandoval
     during the relevant time period, the trial court ordered her to submit herself and the child to
     DNA testing, but she refused, contending that she and Roman had deprived the court of
     subject matter jurisdiction to “revisit or redetermine the existence of a father and child
     relationship for a child who already has a legal father.” Thus, Botello construed the statutory
     term “conclusive” to mean that once parentage is presumed under section 5 and has not been
     timely rescinded, that presumption is unassailable by any party or in any legal proceeding.
¶6       Her interpretation, however, negates the legislature’s plain statement in section 7(a) of
     the Act, that “[a]n action to determine the existence of the father and child relationship,
     whether or not such a relationship is already presumed under Section 5 of this Act, may be
     brought by *** a man presumed or alleging himself to be the father of the child or expected
     child.” (Emphasis added.) 750 ILCS 45/7(a) (West 2008). In a recent case, for instance,
     W.C.H. was presumed to be W.T.H.’s father because he was married to W.T.H.’s mother
     when she gave birth, and on the basis of the marital presumption stated in section 5, the
     couple challenged J.S.A.’s standing to bring a parentage petition. J.S.A. v. M.H., 343 Ill. App.
     3d 217, 220, 797 N.E.2d 705, 708 (2003). Based on the plain terms of section 7(a), the
     appellate court rejected the challenge:
                  “Regardless of any legal presumptions of paternity, a man alleging that he is the
             father of a child may bring an action to determine a parent-child relationship. 750
             ILCS 45/7(a) (West 2000). Those actions must be brought no later than two years
             after the child reaches the age of majority. See 750 ILCS 45/8 (West 2000). Since the
             child in this case [is four years old and] has not yet reached majority, plaintiff
             [J.S.A.] has standing to bring his parentage petition.” J.S.A., 343 Ill. App. 3d at 220,
             797 N.E.2d at 708.
¶7       J.S.A. is not directly on point because the legal presumption there arose due to marriage
     rather than a voluntary acknowledgment of paternity; however, the case illustrates that a
     presumption of paternity may be rebutted. J.S.A, 343 Ill. App. 3d 217, 797 N.E.2d 705. We
     emphasize that section 7(a)’s broad wording encompasses presumptions that arise due to
     marriage as well as presumptions that arise due to the execution of an acknowledgment of
     paternity. In another case construing this statute, the supreme court held:
             “[A] man alleging himself to be the biological father of a child has standing to bring
             an action to establish his relationship to the child, without regard to whether another
             man is already presumed to be the child’s father pursuant to section 5(a) of the Act.
             Moreover, once a petition to establish parentage is filed with the court, the court,
             pursuant to Section 11(a) of the Act, ‘may, and upon request of a party shall, order
             or direct the mother, child and alleged father to submit to deoxyribonucleic acid
             (DNA) tests to determine inherited characteristics.’ *** 750 ILCS 45/11(a) (West
             2002). If the results of paternity testing obtained pursuant to this section show that
             the presumed father is not the biological father, the presumption in section 5 is
             rebutted. 750 ILCS 45/11(g) (West 2002).” (Emphasis omitted.) John M., 212 Ill. 2d
             at 264, 817 N.E.2d at 506.


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¶8         Also relevant is the fact that the legislature provided for instances in which a man would
       wish to seek a declaration that he is not a child’s father. Section 7(b) of the Act provides,
       “An action to declare the non-existence of the parent and child relationship may be brought
       by *** a man presumed to be the father under *** Section 5 of this Act [due to his marriage
       to the child’s mother].” (Emphasis added.) 750 ILCS 45/7(b) (West 2008). Notably, section
       7(b) does not indicate that a man who is presumed to be the father under section 5 due to his
       signature on a voluntary acknowledgment of paternity form, such as Roman, may simply
       have a change of heart and bring an action to declare the nonexistence of the parent and child
       relationship. An additional section of the Act, section 7(b–5), provides for a declaration of
       a nonexistence of the parent and child relationship, in limited circumstances not relevant
       here. 750 ILCS 45/7(b–5) (West 2008); Smith, 212 Ill. 2d at 400, 818 N.E.2d at 1210
       (construing 7(b–5)).
¶9         These statutory sections led the supreme court to state, “A father-child relationship may
       be established pursuant to section 7(a), or disestablished pursuant to sections 7(b) and
       7(b–5). Section 7(a) permits various parties to bring an action to establish a child’s paternity,
       without regard to whether parentage is presumed under section 5(a).” (Emphasis in original.)
       John M., 212 Ill. 2d at 263-64, 817 N.E.2d at 506.
¶ 10       Reading the statutory provisions together, it is apparent that despite a legal presumption
       of paternity, an action to establish or disestablish paternity may be brought and the court will
       have authority to adjudicate the issues. Botello’s construction of “conclusive” as it is used
       in section 5 of the Act is overbroad. The term “conclusive” as it is used in section 5 must be
       applicable only to the signator or signators of an Illinois voluntary acknowledgment of
       paternity form, in this instance Botello and Roman, in order to preclude them from
       subsequently disputing their parent-child relationship with the child, except in the very
       limited circumstances set out in section 7(b). 750 ILCS 45/7(b) (West 2008). We do not
       construe their voluntary acknowledgment of paternity to be a legitimate means of thwarting
       another man’s parentage action or a permissible basis for interfering with a father-child
       relationship.
¶ 11       We find the plain language of section 7(a), which permits a man alleging that he is the
       father of a child to bring an action to determine paternity, is applicable here, regardless of any
       presumption of paternity by another man. 750 ILCS 45/7(a) (West 2008). Sandoval filed the
       requisite verified petition alleging he is the minor child’s father and he requested DNA
       testing. We find that pursuant to section 7(a), Sandoval had standing to pursue this claim and
       that pursuant to section 11(a), the trial judge had authority to order Botello to submit herself
       and the child to DNA testing to determine Sandoval’s paternity. Botello’s refusal to comply
       with the court order to that effect was a willful disregard of the judge’s authority.
¶ 12       For these reasons, we affirm the judgment of the circuit court and remand this case for
       further proceedings consistent with the opinions expressed in this order. If Botello submits
       herself and the child to DNA testing within the time frame ordered by the circuit court on
       remand, she will purge herself of the contempt finding. People ex. rel. Miselis v. Health &
       Hospitals Governing Comm’n, 44 Ill. App. 3d 958, 961-62, 358 N.E.2d 1221, 1224 (1976).
¶ 13       Affirmed and remanded.


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