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SECOND DIVISION

September 25, 2001

No. 1-00-2890

JUSTICE GORDON delivered the opinion of the court:

Appellant Anthony Newsome appeals from the Cook Countycircuit court's granting of a motion to strike and dismiss hisverified complaint to establish non-paternity. In thiscomplaint, which was filed in February 2000, Newsome sought adetermination that he was not the biological father of appelleeElma Jackson's daughter, Alecia Ashley Jackson. Newsome, who wasnever married to the mother, Elma Jackson (Elma), had previouslybeen identified as the natural father in a December 1991complaint filed by Elma to determine the existence of the father-and-child relationship. About a month later (January 22, 1992)Elma and Newsome signed an order of parentage and support underwhich Newsome, who was named the natural father, was to makesupport payments. However, DNA testing conducted in December1998 indicated that Newsome was not the father, and hesubsequently filed his complaint to establish non-paternity. Elma moved to strike and dismiss the complaint, and the trialcourt granted the motion, finding that Newsome was not a presumedfather within the scope of section 5 of the Illinois ParentageAct of 1984 (the Parentage Act) (750 ILCS 45/1 et seq. (West2000)), and he therefore lacked standing to file his complaint.

According to Elma's complaint to determine the existence ofthe father and child relationship, which was filed on December 6,1991, she and Newsome engaged in sexual intercourse during theperiod from March 1989 to September 1990. Elma alleged that shebecame pregnant as a direct result, and gave birth to AleciaJackson on December 17, 1989. The trial court subsequently foundthat Newsome was the natural father of the child. In an order ofparentage and support dated January 22, 1992, Newsome was orderedto pay support of $175 per month "by agreement of the parties." Newsome and Elma both signed the order to indicate theiragreement.

On May 15, 1997, Newsome filed a pro se motion for bloodtesting, alleging that Elma had told him that he was not thechild's father. On December 4, 1997, Newsome apparently filed apetition to vacate the trial court's January 22, 1992, orderestablishing the child's parentage. The petition itself does notappear in the record, but a notice of petition filed on December4, 1997, which is included in the record, gives notice that thepetition would be filed pursuant to section 2-1401 of the Code ofCivil Procedure (735 ILCS 5/2-1401 (West 2000)).

In April 1998, the trial court denied Newsome's section 2-1401 petition. The court noted that it had been more than sixyears since the January 1992 order was entered. According to thecourt, Newsome's petition thus was time-barred.⁽¹⁾ In denyingNewsome's petition, the trial court indicated that Newsome hadalleged that Elma had fraudulently concealed his lack ofparentage of the child, and he had alleged that the two-yearlimitation period under section 2-1401 therefore did not apply. However, the court found that Newsome's allegation of fraudulentconcealment had not been proven, and that the two-yearlimitations period did apply. Thus the court found that therewere no "legally sufficient grounds for setting aside the[January 1992] judgment." The court also denied Newsome's motionfor a blood test.

On February 1, 2000, Newsome filed his verified complaint toestablish non-paternity pursuant to subsection 7(b-5) of theParentage Act (750 ILCS 45/7(b-5) (West 2000)).⁽²⁾ Subsection 7(b-5) amends the Parentage Act to permit a man who has beenpreviously adjudicated to be the father of a child to challengethe adjudication if deoxyribonucleic acid (DNA) tests determinethat he is not the natural father.

Newsome alleges in his subsection 7(b-5) complaint that heagreed to the entry of the January 1992 order establishing hisparentage "based on the representations of the petitioner, ElmaJackson, that he was the biological father of her child, AlechiaAshley Jackson." On December 29, 1998, tissue was taken fromNewsome and from "his purported child, Alechia Ashley Jackson,for the purpose of DNA testing to determine if he [was] thebiological father." A "DNA Paternity Report" attached to thesubsection 7(b-5) complaint states that:

"The alleged father, ANTHONY NEWSOM, is excludedas being the father of the child, ALECHIA ASHLEYJACKSON." (Emphasis in original.)

For three different genetic systems analyzed withthe polymerase chain reaction, the alleged father,ANTHONY NEWSOM[,] failed to match the obligate paternalallele present in the child, ALECHIA ASHLEY JACKSON."

Thus according to the DNA report, Newsome could not have been thechild's natural father.

Elma moved to strike and dismiss Newsome's complaintpursuant to sections 615 and 619 of the Code of Civil Procedure(735 ILCS 5/2-615 & 5/2-619 (West 2000)). Elma alleged that sheand Newsome were never married to each other, and they "neversigned a voluntary acknowledgement of parentage pursuant to theIllinois Department of Public Aid Code or Section 12 of the VitalRecords Act." Elma alleged that Newsome was not a presumedfather pursuant to section 5 of the Parentage Act (750 ILCS 45/5(West 2000)), and he therefore lacked standing to file hisverified complaint.

Following a hearing, the trial court granted Elma's motionto strike and dismiss the complaint. In an order entered on July17, 2000, the court found that Newsome "is not a presumed fatheras outlined in Section 5 of the Illinois Parentage Act of 1984and lacks standing to file a 45/7(b-5) Verified Counter-Complaint[sic] to Establish Non-Paternity." The court stated that "[t]heorder of parentage and support entered on 1/22/92 shall remain infull force and effect."

Newsome filed his notice of appeal on August 14, 2000,seeking reversal of the trial court's July 17, 2000, orderdismissing his subsection 7(b-5) complaint.

Newsome urges on appeal that the January 22, 1992, orderestablishing Alecia Jackson's parentage constituted anacknowledgement of parentage within the meaning of section5(a)(4) of the Parentage Act, and that Newsome thus is a presumedfather within the meaning of section 5. Accordingly, Newsomeasserts that he had standing to seek a determination of non-paternity pursuant to subsection 7(b-5) of the Parentage Act. Weagree.

Subsection 7(b-5), which was added to the Parentage Act inAugust 1998, "provides a new cause of action allowing anadjudicated father to challenge the adjudication 'if' DNA testsestablish nonpaternity." In re Marriage of Lubbs, 313 Ill. App.3d 968, 970, 730 N.E.2d 1139, 1142 (2000). Prior to thisamendment, a man adjudicated to be the father of a child couldnot reopen the case once a paternity judgment became final, "evenwhere subsequent DNA evidence conclusively establishe[d]nonpaternity." Marriage of Lubbs, 313 Ill. App. 3d at 970, 730N.E.2d at 1142.

Subsection 7(b-5) of the Parentage Act provides that:

"An action to declare the non-existence of theparent and child relationship may be brought subsequentto an adjudication of paternity in any judgment by theman adjudicated to be the father pursuant to thepresumptions in Section 5 of this Act if, as a resultof deoxyribonucleic acid (DNA) tests, it is discoveredthat the man adjudicated to be the father is not thenatural father of the child. Actions brought by theadjudicated father shall be brought by verifiedcomplaint. If, as a result of the deoxyribonucleicacid (DNA) tests, the plaintiff is determined not to bethe father of the child, the adjudication of paternityand any orders regarding custody, visitation, andfuture payments of support may be vacated." (Emphasisadded.) 750 ILCS 45/7(b-5) (West 2000).

Thus under subsection 7(b-5), where DNA evidence establishesnonpaternity, a man adjudicated to be the father of a child maychallenge this prior judgment if he was adjudicated to be thefather "pursuant to the presumptions of Section 5" of theParentage Act.

Section 5 of the Parentage Act states in pertinent partthat:

"(a) A man is presumed to be the natural father ofa child if:

(1) he and the child's natural motherare or have been married to each other, eventhough the marriage is or could be declaredinvalid, and the child is born or conceivedduring such marriage;

(2) after the child's birth, he and thechild's natural mother have married eachother, even though the marriage is or couldbe declared invalid, and he is named, withhis written consent, as the child's father onthe child's birth certificate;

(3) he and the child's natural motherhave signed an acknowledgement of paternityin accordance with rules adopted by theIllinois Department of Public Aid underSection 10-17.7 of the Illinois Public AidCode; or

(4) he and the child's natural motherhave signed an acknowledgement of parentageor, if the natural father is someone otherthan one presumed to be the father under thisSection, an acknowledgement of parentage anddenial of paternity in accordance withSection 12 of the Vital Records Act." (Emphasis added.) 750 ILCS 45/5(a) (West2000).

Since Newsome and Elma Jackson were never married, and sincethere was no involvement of the Illinois Department of PublicAid, there is no dispute that subsections (a)(1), (a)(2) and(a)(3) of Section 5 have no application here. Thus the pertinentprovisions which must be addressed under the facts of this caseare those contained in subsection (a)(4), which in turn refers tosection 12 of the Vital Records Act (Records Act) (410 ILCS535/12 (West 2000)). It is subsection 5(a)(4) upon which Newsomeseeks to premise his 7(b-5) action.

Elma notes that Section 12 of the Records Act "provides theprocedure for acknowledging a child out of wedlock," evenspecifying "the forms to be used." Elma appears to argue thatsince section 5(a)(4) of the Parentage Act refers to section 12of the Records Act, the acknowledgement of parentage mentioned insection 5(a)(4) must be an acknowledgement that is made inaccordance with section 12 of the Records Act. There is nodispute among the parties that, of the provisions of section 12,the portion that applies here is subsection (4).

Subsection 12(4) states that:

"Unless otherwise provided in this Act, if themother was not married to the father of the child ateither the time of conception or the time of birth, thename of the father shall be entered on the child'sbirth certificate only if the mother and the person tobe named as the father have signed an acknowledgementof parentage in accordance with subsection (5).

Unless otherwise provided in this Act, if themother was married at the time of conception or birth,and the presumed father (that is, the mother's husband)is not the biological father of the child, the name ofthe biological father shall be entered on the child'sbirth certificate only if, in accordance withsubsection (5), (i) the mother and the person to benamed as the father have signed an acknowledgement ofparentage and (ii) the mother and the presumed fatherhave signed a denial of paternity." 410 ILCS 535/12(4)(West 2000).

Subsection 12(4) includes by reference subsection (5), whichprovides for specific formats to be followed in obtaining anacknowledgement of parentage, and also provides for thetransmission of these forms to the Illinois Department of PublicAid. Elma contends that since the January 22, 1992, ordercontaining the acknowledgement of Alecia Jackson's parentage didnot conform with subsection 12(5) of the Records Act, it cannotsatisfy the requirements of subsection 5(a)(4) of the ParentageAct, and it therefore does not meet the requirements ofsubsection 7(b-5) of the Parentage Act.

As previously noted, the prerequisites for a 7(b-5) actioninclude not only that a man is adjudicated to be a father, butalso that this adjudication is made "pursuant to the presumptionsin Section 5 of this Act." 750 ILCS 45/7(b-5) (West 2000). Underthis language, a man adjudicated to be a father based on apresumption that he is the father (e.g., because he and themother signed an acknowledgement of parentage) may challenge theadjudication, where DNA tests show that he is not the naturalfather. No rationale is offered to explain why the statute wouldseek to distinguish between presumptions that are based on theacknowledgement of parentage denoted in subsection 12(5) of theRecords Act, and an acknowledgement as in this instance whichomits the minute technical formats and procedures outlined in subsection 12(5). Thus any such distinction read into thestatute would appear to be wholly arbitrary. It would be farmore cogent to construe the relevant provision in subsection 7(b-5) which refers to the presumptions in section 5 of the ParentageAct as drawing a distinction between adjudications based onpresumptions of paternity, which may be challenged with DNAevidence,⁽³⁾ and other adjudications such as those based on a bloodtest, where such a challenge would be inappropriate. Under thisapproach, subsection 7(b-5) would be applicable to anadjudication of parentage resulting from circumstantialinferences raising a presumption, but would not be applicable toa judicial determination predicated on scientific evidence. Cf.Marriage of Lubbs, 313 Ill. App. 3d at 971, 730 N.E.2d at 1142(concluding that subsection 7(b-5) creates a limited exception tothe rule that an adjudicated father is barred from challengingthe adjudication).

Under this analysis, we would conclude that subsection 7(b-5)'s reference to the presumptions in section 5 of the ParentageAct is not meant to incorporate the minute and ministerialtechnical requirements of section 12 of the Records Act, whichare twice removed from the original 7(b-5) reference and whichare not relevant to its purpose in differentiating betweenadjudications based on presumptions and those based on more solidscientific evidence such as a blood test. This view is supportedby a well-settled rule of statutory construction. Subsection7(b-5) of the Parentage Act is a statute of "specific reference"because it refers specifically to a particular statute by itstitle or section number, in this instance section 5 of theParentage Act. See 2B N. Singer, Sutherland's Statutes andStatutory Construction