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Docket No. 97120-Agenda 17-May 2004.

THE PEOPLE ex rel. THE DEPARTMENT OF PUBLIC AID,
Appellant, v. ROMEL C. SMITH, Appellee.

Opinion filed September 23, 2004.
 

JUSTICE THOMAS delivered the opinion of the court:

At issue is whether a man who signs a voluntary acknowledgmentof paternity can later seek to undo the acknowledgment on the basisof DNA test results. We hold that he cannot.

BACKGROUND

On October 9, 1997, Valerie Dawson gave birth to KendraSmith. Dawson and respondent, Romel Smith, executed a voluntaryacknowledgment of paternity two days later. By executing this form,respondent became Kendra's legal father. See 750 ILCS 45/6(a), (b)(West 2002). The acknowledgment form informed respondent that, bysigning it, he would become "the legal father of the child for allpurposes." Moreover, the form advised respondent of his right togenetic testing, the legal consequences of his decision to sign theform, and what rights he was waiving by signing the form. Under thelarge bold heading "Notice of Rights and Responsibilities," respondentwas advised of the following:

"1. When the mother and alleged biological father properlysign the Voluntary Acknowledgment of Paternity form and,if required, the husband/exhusband and mother sign theVoluntary Denial of Paternity form, the alleged biologicalfather becomes the legal father of the child for all purposes.The biological father and/or mother may be ordered to paychild support until the child is at least eighteen years old,including retroactive child support from the date of thechild's birth, reimbursement of public assistance paid to thecustodial parent for the child; medical costs; and medicalinsurance for the child until the child is at least eighteen yearsold.

2. You have the right to an attorney, a hearing and a rightto have genetic testing. When the alleged biological fatherand the mother sign the Voluntary Acknowledgment ofPaternity they are waiving those rights. Custody of the childis presumed to be with the mother. The alleged biologicalfather may petition the courts for custody and visitationrights.

3. You should have a genetic test if you are not sure whois the biological father of the child. If the results of thegenetic testing show that the man is the biological father ofthe child you can sign the Voluntary Acknowledgment ofPaternity form and the mother and husband/exhusband maysign the Voluntary Denial of Paternity form.

4. If you want legal advice you should talk to an attorney.If you would like to establish paternity without going to courtor need other child support services, you may call the IllinoisDepartment of Public Aid at 1-800-447-4278. Persons usinga teletypewriter (TTY) may call 1-800-526.5812."

Respondent's signature appears on the form directly under anaffirmation that he (1) had read and understood his rights andresponsibilities listed on the form; (2) was waiving those rights; (3) didnot want a genetic test; and (4) was accepting the obligation toprovide child support.

On December 3, 1997, the State, on behalf of the IllinoisDepartment of Public Aid, filed a petition to set child support. Thepetition alleged that respondent had failed to meet his obligationsunder the Illinois Public Aid Code and asked the circuit court to orderrespondent to pay child support commensurate with statutoryguidelines. On May 4, 1998, the court ordered respondent to pay$38.18 per week in child support and further ordered him to obtainmedical insurance coverage for Kendra.

On June 18, 2002, respondent filed a pro se petition to terminatechild support. Respondent alleged in the petition that he was notKendra's biological father. The State moved to dismiss the petitionpursuant to section 2-615 of the Code of Civil Procedure (735 ILCS5/2-615 (West 2002)).

Respondent obtained an attorney and refiled his action as acomplaint to declare the nonexistence of the parent and childrelationship pursuant to section 7(b-5) of the Illinois Parentage Actof 1984 (Parentage Act) (750 ILCS 45/7(b-5) (West 2002)).Respondent asserted in the complaint that he had signed the voluntaryacknowledgment of paternity in 1997 based on Dawson'srepresentation that he was Kendra's biological father. Respondententered the military on or about July 7, 1998, and was discharged onor about December 12, 1999. During this time, respondent sawKendra on only a few occasions. In March 2002, respondent began todoubt that Kendra was his child because she did not share any of hisphysical characteristics. Respondent had himself and Kendra tested atDNA Diagnostics Center on April 29, 2002, and the test resultsshowed a 0% chance that he was Kendra's biological father. The testresults were certified on May 10, 2002, but respondent alleged that hedid not receive them until June 17, 2002, because of administrativeproblems. Respondent attached the DNA test results to his complaint.

The State moved to dismiss the complaint pursuant to section2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West2002)), arguing that respondent could not pursue this action becausehe had signed a voluntary acknowledgment of paternity. The Staterelied on section 5(b) of the Parentage Act (750 ILCS 45/5(b) (West2002)), which provides that the presumption of paternity arising outof a voluntary acknowledgment becomes conclusive if theacknowledgment is not rescinded upon the earlier of (1) 60 days afterthe acknowledgment is signed; or (2) "the date of an administrative orjudicial proceeding relating to the child (including a proceeding toestablish a support order) in which the signatory is a party." The Statefurther relied on section 6(d) of the Parentage Act (750 ILCS 45/6(d)(West 2002)), which provides that a voluntary acknowledgment ofpaternity may be challenged only on grounds of fraud, duress, ormaterial mistake of fact.

Respondent argued in a brief in support of his complaint that hehad filed a proper action pursuant to section 7(b-5) of the ParentageAct, which provides as follows:

"An action to declare the non-existence of the parent andchild relationship may be brought subsequent to anadjudication of paternity in any judgment by the manadjudicated to be the father pursuant to the presumptions inSection 5 of this Act if, as a result of deoxyribonucleic acid(DNA) tests, it is discovered that the man adjudicated to bethe father is not the natural father of the child. Actionsbrought by the adjudicated father shall be brought by verifiedcomplaint. If, as a result of the deoxyribonucleic acid (DNA)tests, the plaintiff is determined not to be the father of thechild, the adjudication of paternity and any orders regardingcustody, visitation, and future payments of support may bevacated." 750 ILCS 45/7(b-5) (West 2002).

Section 7(b-5) references the presumptions in section 5. Thesepresumptions are as follows:

"