text:
      In re PATRICK VENEGAS, Asserted to be a Person Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. Patrick Venegas, Respondent-Appellant).
    Third District
    No. 3-90-0610
    Opinion filed August 26, 1991.

      Penelope Karnes and Jeff Plesko, both of Legal Advocacy Service, of Carbondale, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court;

The trial court ordered Patrick Venegas to be involuntarily admitted to the Department of Mental Health and Developmental Disabilities for a period not to exceed 60 days. The respondent appeals that order. We reverse.

The record shows that on July 20, 1990, a petition for the involuntary admission of Patrick Venegas was filed. At the hearing on the petition, Dr. Sreehari Patiblanda testified that the respondent suffered from paranoid schizophrenia and an anti-social personality disorder. The doctor’s opinion was that the respondent could reasonably be expected to inflict serious physical harm upon himself or another in the near future. The doctor concluded that a less restrictive facility was not available for the respondent.

The trial court ordered an involuntary admission. The respondent contends on appeal that the order for involuntary admission must be reversed because no treatment plan was prepared as required under section 3 — 810 of the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1989, ch. 91V2, par. 3 — 810). He further contends that the order for involuntary admission must be reversed since the trial court failed to consider such a report, as is required under section 3 — 810.

Before we address the respondent’s claims, we must first consider whether this appeal is moot. The State argues that an appeal from an involuntary commitment order may be dismissed as moot when the respondent has been previously committed. As authority for this argument, the State cites In re Wathan (1982), 104 Ill. App. 3d 64, 432 N.E.2d 670.

Generally, the mootness doctrine does not apply to mental health cases. (In re Garcia (1978), 59 Ill. App. 3d 500, 375 N.E.2d 557.) However, in Wathan the appellate court held that the mootness doctrine should be applied. In that case, on March 31, 1981, the respondent was adjudicated to be subject to involuntary admission and was ordered hospitalized. Then on June 3, 1981, a second petition for involuntary admission was filed. After a hearing, the respondent was again found to be subject to involuntary admission and was again ordered hospitalized. It was from the second order of involuntary admission that the respondent appealed.

The appellate court found the mootness doctrine applicable. The court reasoned that since the first commitment had not been appealed, there could be no collateral consequences emanating from the respondent’s second involuntary admission. In re Wathan (1982), 104 Ill. App. 3d 64, 432 N.E.2d 670; In re Meek (1985), 131 Ill. App. 3d 742, 476 N.E.2d 65.

In the instant case, the record indicates the respondent was admitted four times prior to the admission now in contention. If the admissions were involuntary, the mootness doctrine might apply. (In re Wathan (1982), 104 Ill. App. 3d 64, 432 N.E.2d 670.) If the prior admissions were voluntary, the mootness doctrine would not apply. (In re Meek (1985), 131 Ill. App. 3d 742, 476 N.E.2d 65.) Since the record does not indicate whether the prior admissions were voluntary or involuntary, we will not dismiss this appeal as moot.

We turn now to the respondent’s contention that the order for involuntary admission must be reversed due to the State’s failure to prepare, and the court’s failure to consider, a treatment report prior to disposition. The general rule is that if no report is prepared or considered, it is reversible error. (In re James (1989), 191 Ill. App. 3d 352, 547 N.E.2d 759.) The State argues, however, that Dr. Patiblanda’s testimony at the hearing was sufficient to satisfy the requirements of section 3 — 810 (Ill. Rev. Stat. 1989, ch. 91V2, par. 3 — 810). We disagree.

Section 3 — 810 provides:

“Before disposition is determined, the facility director or such other person as the court may direct shall prepare a report including information on the appropriateness and availability of alternative treatment settings, a social investigation of the respondent, a preliminary treatment plan, and any other information which the court may order. The treatment plan shall describe the respondent’s problems and needs, the treatment goals, the proposed treatment methods, and a projected timetable for their attainment. If the respondent is found subject to involuntary admission, the court shall consider the report in determining an appropriate disposition.” 111. Rev. Stat. 1989, ch. 91%, par. 3-810.

The fundamental objective of statutory construction is to ascertain and give effect to the legislature’s intent. (In re Application of Rosewell (1983), 97 Ill. 2d 434, 454 N.E.2d 997.) A statute should be read as a whole, and all its relevant parts should be considered to determine the intent of the legislature. (People v. Jordan (1984), 103 Ill. 2d 192, 469 N.E.2d 569.) Where the meaning of a statute is in dispute, the threshold task of a court is to examine the terms of the statute itself. United States Steel Corp. v. Pollution Control Board (1978), 64 Ill. App. 3d 34, 380 N.E.2d 909.

In In re Collins (1981), 102 Ill. App. 3d 138, 429 N.E.2d 531, despite psychiatric testimony describing the patient’s problems and the proposed treatment methods, the appellate court concluded that the record contained no evidence of a report complying with section 3 — 810. We agree that although section 3 — 810 does not expressly state that the report must be in writing, the language of the statute indicates the legislature intended for the report to be more than testimony at the hearing. (In re Blume (1990), 197 Ill. App. 3d 552, 554 N.E.2d 1100; In re Lamb (1990), 202 Ill. App. 3d 725, 560 N.E.2d 422.) Accordingly, the psychiatric testimony in the instant case did not comply with section 3 — 810.

The trial court therefore erred when it subjected the respondent to involuntary admission without a section 3 — 810 report. The State argues, however, that the respondent waived any error stemming from the failure to comply with section 3 — 810. It contends that a respondent must raise objections to the lack of a report in the trial court or the objections are considered waived. In re Meek (1985), 131 Ill. App. 3d 742, 476 N.E.2d 65.

In Meek, the court held that the respondent had waived any objection to deficiencies in the section 3 — 810 report by failing to raise those deficiencies in the trial court. We note, however, that in In re James (1989), 191 Ill. App. 3d 352, 547 N.E.2d 759, the court distinguished Meek. The court noted that in Meek a report had been prepared and the only issue was the sufficiency of the report. On the other hand, in James no report was prepared. The court held that when no report is prepared, a total failure to comply with the statute exists and the issue is not waivable. (See also In re James (1990), 199 Ill. App. 3d 316, 556 N.E.2d 839.) In the instant case, there is no evidence in the record that a report was prepared. The issue therefore was not waived.

The judgment of the circuit court of Peoria County is reversed.

Reversed.

BARRY and SLATER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    GLORIA PARKS, formerly Gloria Marcy, Plaintiff-Appellee, v. MARLA S. NEUF, Defendant-Appellant.
    Fourth District
    No. 4-91-0152
    Opinion filed August 22, 1991.
    Rehearing denied October 1, 1991.
    Joseph W. Vigneri, of Decatur, for appellant.
    Burger, Fombelle, Zachry & Rathbun, P.C., of Decatur, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff Gloria Parks filed this action in the circuit court of Sangamon County to recover damages for false affidavits of service executed by defendant Marla S. Neuf, the private process server in a separate small claims action. Defendant’s motion to dismiss count IV of plaintiff’s second-amended complaint captioned “Falsification of Affidavit of Service” was denied. The following issue has been certified to this court pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308): Is a civil cause of action for money damages for falsification of an affidavit of service by a private person on a return of a citation to discover assets or on a return of an order to show cause cognizable under the laws of the State of Illinois? We conclude an action for abuse of process may be maintained for falsification of an affidavit of service by a private process server.

In her original complaint, plaintiff alleged that on January 8, 1988, a judgment was entered against her in a small claims action filed by Illinois Bell. On May 3, 1988, a citation to discover assets was filed and purportedly personally served on plaintiff by defendant on May 3, 1988, at 1:12 p.m. Plaintiff further alleged defendant’s affidavit of service was false. Because she was never served with the citation, plaintiff failed to appear in court on May 6, 1988, as required, and an order to show cause for failure to appear was entered. The order to show cause was purportedly personally served on plaintiff by defendant on June 14, 1988, at 2:35 p.m. According to plaintiff, this affidavit of service was also false, plaintiff was never served with the order to show cause and, thus, she failed to appear in court on June 17, 1988, as required. Plaintiff was arrested on December 17, 1988, for failing to appear in the citation proceedings.

Plaintiff originally sought damages for false arrest (count I) and intentional infliction of emotional distress (count II). The trial court dismissed count I of plaintiff’s original complaint with prejudice, and count II was dismissed without prejudice. In her first-amended complaint, plaintiff included three counts: abuse of process, intentional infliction of emotional distress, and an unidentified cause of action which included allegations from counts II and III. Counts II and III of the first-amended complaint were dismissed with prejudice. Plaintiff was allowed to replead count IV of this first-amended complaint.

Plaintiff’s second-amended complaint included one count (count IV) for damages of falsification of an affidavit of service. In this count, plaintiff alleged (1) that during her arrest, her picture was taken, showing her handcuffed, and was thereafter published in numerous newspapers; (2) defendant had a duty to plaintiff and the court as a private process server to file truthful affidavits of service; (3) defendant intentionally falsified affidavits of service when she knew or should have known the court would rely on them in issuing a warrant for plaintiff’s arrest; and (4) as a direct and proximate result of defendant’s actions, plaintiff was arrested, her arrest was published in the newspaper, and her reputation was thereby damaged. Defendant’s motion to dismiss the second-amended complaint pursuant to section 2 — 615 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615) was denied.

Defendant contends in this court that the falsification of affidavits in this case amounts to penury and the law does not subject one who allegedly committed perjury to civil liability for such acts. Plaintiff agrees with defendant that when the perjury committed bears directly on the issue or point in question, no civil remedy is available to the one against whom the perjury operated. However, plaintiff urges the perjury involved in this matter does not bear directly on the issues in the citation proceedings, i.e., whether plaintiff is liable to Illinois Bell for an outstanding phone bill. Rather, the perjury here is collateral or adjunct to those proceedings and, therefore, a separate civil remedy should be recognized. In essence, plaintiff contends no remedy exists for the perjury involved in this case.

The parties focus their arguments on whether defendant’s actions constitute perjury. Perjury has been defined as the wilful or corrupt taking of a false oath, lawfully administered in a judicial proceeding or in the course of justice, with respect to a matter material to the issue or point of inquiry. (70 C.J.S. Perjury §2, at 248 (1987).) The filing of false affidavits can be the basis of a perjury charge (HI. Rev. Stat. 1989, ch. 101, par. 5; Loraitis v. Kukulka (1953), 1 Ill. 2d 533, 116 N.E.2d 329; Amerco Field Office v. Onoforio (1974), 22 Ill. App. 3d 989, 992, 317 N.E.2d 596, 599), or may give rise to a court-imposed sanction for contempt of court (Ill. Rev. Stat. 1989, ch. 110, par. 2-203(c); Amerco, 22 Ill. App. 3d at 992, 317 N.E.2d at 599). Except under limited circumstances or where authorized by statute, it is generally held an action for damages caused by perjury may not be maintained. (70 C.J.S. Perjury §4, at 251 (1987).) The Illinois courts have long recognized this rule. (John Allan Co. v. Brandow (1965), 59 Ill. App. 2d 328, 207 N.E.2d 339; Dean v. Kirkland (1939), 301 Ill. App. 495, 23 N.E.2d 180; see also Hocker v. Welti (1926), 239 Ill. App. 392; Ruehl Brothers Brewing Co. v. Atlas Brewing Co. (1914), 187 Ill. App. 392.) As stated in John Allan:

“ ‘[N]o action can be maintained on account of the false testimony of witnesses, or of a false statement filed in a judicial proceeding. It is recognized by the authorities that there may be individual cases in which great injustice may be done by this rule of law. The weight of such an argument, however, is overcome in the opinion of the courts asserting the rule, by the mischief of retrying every case in which the judgment or decree rendered or secured on false testimony, or false affidavits, or on contracts or documents whose genuineness or validity was in issue and which may afterwards be ascertained to be forged or fraudulent.’ ” (Emphasis added.) John Allan, 59 Ill. App. 2d at 333, 207 N.E.2d at 342, quoting Ruehl, 187 Ill. App. at 398.

We find this case factually distinct from that involved in John Allan and other cases relied upon by the parties. The false statements in this case involved the process issued, not false testimony or pleadings as in John Allan, Dean v. Kirkland (1939), 301 Ill. App. 495, 23 N.E.2d 180, and Liddell v. Smith (7th Cir. 1965), 345 F.2d 491. The “mischief” of retrying a case as set out in John Allan is not present here; none of the substance of the Bell case concerning whether plaintiff owed the amount claimed by Bell is an issue in the instant case. In John Allan and the other cases finding no cause of action existed, the courts were concerned with undermining the judicial process. To say there is no cognizable cause of action here would in fact undermine the judicial process.

We conclude that plaintiff’s allegations constitute abuse of process for which there is an available remedy for the plaintiff in this case. To establish abuse of process, a plaintiff must establish (1) the existence of an ulterior purpose or motive for the use of regular court process; and (2) some act in the use of the process not proper in the regular prosecution of the proceeding. (Bonney v. King (1903), 201 Ill. 47, 51, 66 N.E. 377, 378; Kurek v. Kavanagh, Scully, Sudow, White & Frederick (1977), 50 Ill. App. 3d 1033, 1038, 365 N.E.2d 1191, 1195; Kennedy v. First National Bank (1990), 194 Ill. App. 3d 1004, 551 N.E.2d 1002.) The gist of this tort is contained within its title; an actionable tort does not exist unless there is some improper use of the process of the court. (Holiday Magic, Inc. v. Scott (1972), 4 Ill. App. 3d 962, 967, 282 N.E.2d 452, 455-56.) “Process” has been defined as “any means used by the court to acquire or to exercise its jurisdiction over a person or over specific property.” (Holiday, 4 Ill. App. 3d at 968, 282 N.E.2d at 456.) The Illinois courts have found improper use of process only in those instances where the plaintiff has suffered an actual arrest or a seizure of property. Holiday, 4 Ill. App. 3d at 969, 282 N.E.2d at 457, citing John Allan, 59 Ill. App. 2d 328, 207 N.E.2d 339, and Alberto-Culver Co. v. Andrea Dumon, Inc. (N.D. Ill. 1969), 295 E Supp. 1155.

Plaintiff’s allegations meet the requirements for a cause of action for abuse of process. Defendant twice falsified affidavits of return of service of process for the ulterior purpose or motive of obtaining the fees provided for a private process server. Falsification of a return of service is clearly an act in the use of process not proper in the regular prosecution of the proceeding. As a result of defendant’s actions, plaintiff was arrested.

In conclusion, we find a civil cause of action for abuse of process may be maintained for falsification of an affidavit of service by a private person. Accordingly, we affirm the trial court’s denial of defendant’s motion to dismiss plaintiff’s cause of action.

Affirmed.

SPITZ and KNECHT, JJ., concur.


author: JUSTICE KNECHT

text:
      In re K.S.T., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Florence Williams, Respondent-Appellant).
    Fourth District
    No. 4-91-0114
    Opinion filed August 29, 1991.

      Robert E. Mclntire, Public Defender, of Danville, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Michael D. Clary, of Danville, guardian ad litem.

   JUSTICE KNECHT

delivered the opinion of the court:

On January 10, 1991, the Vermilion County circuit court terminated Florence Williams’ parental rights to her daughter, K.S.T., after a finding of unfitness and inability to discharge parental responsibilities due to mental illness. Florence appeals, arguing the State failed to establish unfitness. We affirm.

Florence is 37 years old and suffers from paranoid schizophrenia. She married Charles Williams and had three children from this union who are still living. Florence and Charles divorced in 1974 and Charles retained custody of the children. Florence has since given birth to three other children, D.W., A.S., and K.S.T. The Department of Children and Family Services (DCFS) maintains legal responsibility for each of these three children. Florence’s parental rights as to D.W. and A.S. were terminated earlier. Florence has not been able to provide custodial care for any of her children. K.S.T.’s father has schizophrenia. He chose to execute a final and irrevocable surrender of his parental rights on December 21,1989.

Florence has been receiving treatment for mental illness since 1976 with numerous psychiatric hospitalizations, both voluntary and involuntary, from 1976 to 1989. Her most recent hospitalization occurred in May 1989, following K.S.T.’s birth. Florence was actively psychotic at the time, paranoid, and experiencing auditory hallucinations. She took knives to the hospital for protection and had to be restrained. She did not take Prolixin Enanthate, an antipsychotic medication, during her pregnancy. DCFS took K.S.T. from Florence two days after her birth because Florence was actively psychotic and because of her prior mental-health history.

Florence receives care at Crosspoint Human Services in Danville, Illinois. She maintains her own apartment and prepares her own meals, but is otherwise completely dependent on Crosspoint to manage her financial and medical needs. Testimony from Florence’s Crosspoint caseworker indicates Florence has difficulty managing the money she is given each week and had to close a checking account after writing a number of checks for which she had insufficient funds.

Crosspoint provided supervised visitation for Florence and K.S.T. for one hour once a week. Prior to June 1990, Florence did not attend these sessions regularly. She usually left visitation sessions early due to anxiety and frustration. She became frustrated if the baby cried for prolonged periods. With direction, Florence behaved appropriately during visitation and treated K.S.T. gently and lovingly. DCFS and Crosspoint caseworkers indicated returning K.S.T. to Florence was never a part of Florence’s treatment plan because no one believed Florence could care for the child.

This assessment was based in part on how Florence had cared for A.S. After A.S.’s birth, Florence fed him raspberry sherbet, held him up by his arms because she believed he was not breathing, and held him under the sheets and held his nose. She believed “a baby’s bones are like gristle and you can reshape the facial structure by pressing the nose it would make the nose thinner.” K.S.T. was adjudicated a neglected and dependent child due to the mental illnesses of her natural parents and their inability to provide proper care for her. Following a dispositional hearing, K.S.T. was made a ward of the court and custody was placed with DCFS.

The hearing to terminate Florence’s parental rights was held October 4 and 5, 1990. Dr. Robert Talbert, Florence’s psychiatrist, testified Florence has periods of confusion, auditory hallucinations, and inappropriate moodiness, even when she receives Prolixin regularly. Dr. Talbert has been treating Florence at Crosspoint since 1982 or 1983 and indicated her condition has remained the same during the periods in which she takes medication regularly. He testified Florence does not handle stress well and therefore finds everyday decisions difficult. He expected her condition to remain unchanged and to last throughout her life. Finally he reported Florence had, at one point, abused a medication prescribed to control the side effects of Prolixin.

Terry Christian, Florence’s Crosspoint caseworker, testified Cross-point is Florence’s representative payee and handles her financial affairs. She testified to Florence’s difficulty managing money and indicated Florence was not responsible in keeping appointments for Prolixin injections until they were scheduled on the day Florence received her weekly check. Christian had seen Florence upset and angered over small misunderstandings. She stated Florence stopped attending a day treatment program because she did not believe she was benefitting from it and simply did not want to attend. Florence has difficulty concentrating and her impaired judgment affects her ability to care for herself. For example, Christian indicated she had seen Florence dressed inappropriately for weather conditions, though Florence owned appropriate clothing.

Dr. Alan Jacobs, a psychologist, examined Florence and opined her prognosis was guarded to poor. He did not believe Florence was capable of caring for her children and stated even if she received parenting classes, during psychotic episodes she would be unable to care for herself and K.S.T. and might present a danger to both. Florence told him she had abused alcohol (she drank half a case of beer the night before K.S.T’s birth) and marijuana, though she denied using marijuana during pregnancy. Dr. Jacobs testified Florence suffers mild long-term memory deficit and occasional mild confusion. Her short-term memory recall is also mildly impaired. He did not recommend returning K.S.T. to Florence.

The court concluded Florence was unfit to discharge parental responsibilities due to her mental illness, in accord with the Adoption Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(p)). The court also concluded Florence’s inability would extend beyond a reasonable period of time. The court terminated Florence’s parental rights on January 10,1991.

The issue on appeal is whether the State proved, by clear and convincing evidence, Florence’s unfitness. Section l(D)(p) of the Act defines an “[u]nfit person” as:

“[A]ny person whom the court shall find to be unfit to have a child *** the grounds of such unfitness being ***:
(p) inability to discharge parental responsibilities supported by competent evidence from a psychiatrist or clinical psychologist of mental impairment, mental illness or mental retardation *** and there is sufficient justification to believe that such inability to discharge parental responsibilities shall extend beyond a reasonable time period.” (Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(p).)

“An Act approving and adopting the Interstate Compact on Mental Health ***” defines “[m]ental illness” as “mental disease to such extent that a person so afflicted requires care and treatment for his own welfare, or the welfare of others, or of the community.” Ill. Rev. Stat. 1989, ch. 91V2, par. 50-1, art. 11(f).

Under section l(D)(p) of the Act, the State must produce competent evidence showing the parent has a mental inability sufficient to preclude her from discharging normal parental responsibilities. Second, the State must show there is sufficient justification to find the inability will extend beyond a reasonable time period. (In re E.J.F. (1987), 161 Ill. App. 3d 325, 331, 514 N.E.2d 544, 548.) The standard of proof in a fitness case is clear and convincing evidence. (In re Brown (1981), 86 Ill. 2d 147, 152, 427 N.E.2d 84, 87.) The circuit court’s finding of unfitness will not be set aside on review unless contrary to the manifest weight of the evidence. (Brown, 86 Ill. 2d at 152, 427 N.E.2d at 87.) “The rationale underlying this standard is that the trial court’s opportunity to view and evaluate the parties and their testimony is superior to that of a reviewing court. Accordingly, the trial court’s findings should be given great deference.” (Brown, 86 Ill. 2d at 152, 427 N.E.2d at 87; see also In re Pronger (1987), 118 Ill. 2d 512, 526, 517 N.E.2d 1076, 1081.) A parent can be unfit without fault, as “[a] child is no less exposed to danger *** because his parent is unable rather than unwilling to give him care.” In re Devine (1980), 81 Ill. App. 3d 314, 320, 401 N.E.2d 616, 621.

Florence first argues the State failed to establish her schizophrenia precluded her from discharging parental responsibilities. She relies on In re N.F. (1989), 178 Ill. App. 3d 662, 533 N.E.2d 952, and In re M.L.R. (1989), 191 Ill. App. 3d 607, 548 N.E.2d 67. The courts in those cases upheld determinations of parental unfitness based on the testimony of psychiatrists and psychologists. Two mental-health professionals testified in each case and the prognoses offered were consistent: the natural parent(s) were incapable of caring for their children. Florence argues Dr. Talbert and Dr. Jacobs did not render consistent, negative opinions regarding her ability to care for K.S.T.

Dr. Talbert, Florence’s psychiatrist since 1982 or 1983, testified he did not know whether Florence was capable of caring for a child because he had never seen her outside the office and did not know how well she handled people outside the office. Dr. Jacobs examined Florence approximately one year before the termination hearing. He testified Florence was incapable of handling parental responsibilities, even if she took parenting classes. He did not recommend placing K.S.T. with Florence.

Florence argues, in effect, the opinion of one health-care professional formed in an examination one year before the termination hearing is not competent evidence upon which to base termination of her parental rights, and falls short of the clear and convincing standard of proof. She also points to testimony by her Crosspoint caseworker indicating she maintained her own apartment, purchased and prepared food, and furnished her apartment without assistance. Her finances are managed by Crosspoint and, thus, will not be mismanaged, and medications are dispensed on a schedule which will preclude future abuse. Her visitation attendance record has improved over time and she has always exhibited appropriate behavior when interacting with the child. She protests the lack of opportunity to prove she can care for K.S.T. and lack of parenting classes.

Although Dr. Talbert did not offer an opinion on Florence’s ability to care for K.S.T., he did agree dealing with a child less than two years of age is stressful and stated stress alters Florence’s judgment abilities. Prolixin benefits Florence’s condition, according to Dr. Talbert, but does not improve her judgment or control her mood swings. Even Florence admitted she might be fine one day only to have “everything go down the drain” the next.

Given the testimony of Drs. Talbert and Jacobs, Florence, and her caseworkers, we conclude the court’s finding of inability to discharge parental responsibilities due to mental illness was not against the manifest weight of the evidence.

Florence next argues the State did not establish sufficient justification to believe her inability to discharge parental responsibilities would extend beyond a reasonable time. We disagree. Both Drs. Talbert and Jacobs testified her prognosis was poor. Dr. Talbert testified Florence’s schizophrenia is chronic and will last throughout her life. Even with parenting classes, he indicated she could not care for herself or K.S.T. during psychotic episodes. Florence also testified she realized her condition is permanent.

Florence’s history of psychiatric hospitalizations, the poor prognosis for improvement, and the testimony she will always suffer from schizophrenia provided sufficient justification for finding her mental illness will extend beyond a reasonable time period.

The order of the court terminating Florence’s parental rights is affirmed.

Affirmed.

LUND, P.J., and STEIGMANN, J., concur.


author: JUSTICE STEIGMANN

text:
    THE DEPARTMENT OF PUBLIC AID ex rel. SHAUN SKELTON, by his Mother and Next Friend, Patsy Skelton, Plaintiff-Appellant, v. KENNETH LIESMAN, Defendant-Appellee.
    Fourth District
    No. 4-90-0733
    Opinion filed August 29, 1991.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Tanya Solov, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Patrick J. O’Hara, of Petersburg, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Plaintiff, Illinois Department of Public Aid (DPA) on behalf of the minor Shaun Skelton (Shaun), appeals from the order of the circuit court dismissing the paternity action against defendant, Kenneth Liesman, as being barred by a prior judgment pursuant to section 2— 619(a)(4) of the Illinois Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(4)). Plaintiff contends that res judicata was improperly attached to a 1986 paternity proceeding because Shaun was not a party nor in privity with a party to that action. We agree and reverse.

In May 1990, a petition to determine the existence of the father and child relationship was filed by the DPA on behalf of Shaun against defendant, requesting an adjudication of paternity, issuance of an order of support, and reimbursement to DPA for $2,893 in assistance provided for Shaun’s behalf. Pursuant to a motion to dismiss filed by defendant, the court dismissed the cause of action, with prejudice, as being barred by a prior judgment pursuant to section 2— 619(a)(4) of the Code and the doctrine of res judicata.

Resolution of the current paternity action requires an inquiry into the facts and circumstances of the earlier proceeding. In August 1986, an action was commenced in the circuit court of Logan County to establish the existence of the father and child relationship between defendant and Shaun, born August 17, 1980. That action was brought by Patsy Skelton (Patsy), the mother of Shaun, with DPA and sought an adjudication of paternity in defendant and reimbursement to DPA for $6,710 in assistance provided on behalf of the child. Patsy was served with interrogatories by defendant but failed to respond even after the circuit court entered a rule to show cause against her for that failure. As a sanction for Patsy’s failure to comply with discovery, defendant filed a motion to dismiss pursuant to Supreme Court Rule 219(c)(iii) (see 134 Ill. 2d R. 219(c)(iii)), and an order was entered on July 15, 1987, dismissing the cause with prejudice. Thereafter, the Attorney General filed a motion to vacate the order of dismissal, to realign the parties, and to allow DPA to proceed with the action. This motion was denied, and the order of July 15,1987, was not appealed.

Defendant argues that Shaun was a party to the 1986 proceeding by implication because the Attorney General would not have moved to vacate the order of dismissal and realign the parties had DPA not been representing Shaun in the original action or, alternatively, been in privity with Shaun. Defendant concludes that DPA may not now bring an identical successive paternity action because res judicata bars relitigation of the issue of paternity.

Under the doctrine of res judicata, a final judgment on the merits will bar an identical cause of action between the same parties or their privies. (Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 251, 461 N.E.2d 959, 961-62; Spiller v. Continental Tube Co. (1983), 95 Ill. 2d 423, 432, 447 N.E.2d 834, 838.) Under Supreme Court Rule 273, an involuntary dismissal of an action operates as an adjudication upon the merits. (134 Ill. 2d R. 273.) As noted, res judicata or a dismissal pursuant to section 2 — 619(a)(4) of the Code would not bar the current action unless the judgment on the earlier action was between the same parties or their privies. In this case, the trial court made no specific finding that Shaun was a party or in privity with a party to the 1986 proceeding. Thus, the first issue we must decide is whether Shaun was represented by DPA as a party or the privy of a party in the 1986 proceeding.

Section 7(a) of the Illinois Parentage Act of 1984 (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 2507(a)) provides, in pertinent part, that an action to determine the existence of a father and child relationship may be brought by the child, the mother, or a public agency which has provided financial support to the child. Each of these parties is bound by a different statute of limitations for bringing an action: the mother or custodian has two years from the child’s date of birth; a public agency has two years after it has ceased providing assistance; and the child has two years after attaining majority. (Ill. Rev. Stat. 1989, ch. 40, pars. 2508(a)(1), (a)(2).) Therefore, the mere filing of a complaint by one or more of the parties able to bring an action under the Act does not in and of itself create or suggest privity with the nonfiling party or parties.

Nowhere in any of the documents filed by the parties or the court is Shaun named as a party to the 1987 judgment; DPA and Patsy are the only named plaintiffs. While Patsy’s right to bring a paternity action in her own name in the 1986 proceeding might have been time barred because it was brought six years after Shaun’s birth, clearly DPA had a statutory right to bring that action based upon the assistance it was providing. The statute does not specify the child, or anyone else, as being a necessary party.

Defendant has failed to support his bald assertion that the Attorney General’s post-trial motion to vacate the judgment and realign the parties established Shaun as a party to the proceeding. So far as the record shows, defendant did not request joinder of Shaun pursuant to section 2 — 406 or 2 — 407 of the Code (Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 406, 2 — 407), nor request appointment of a guardian ad litem. (See Ill. Rev. Stat. 1989, ch. IIOV2, par. 11 — 13(d).) To construe the earlier proceeding so as to include Shaun as a party, when he was not definitively of record, would frustrate the express public policy of the Act — State recognition of “the right of every child to the physical, mental, emotional and monetary support of his or her parents” (Ill. Rev. Stat. 1989, ch. 40, par. 2501.1). Further, such a construction would render illusory the child’s express statutory right to independently seek a determination of paternity.

Additionally, we cannot agree with defendant’s assertion that Shaun was in privity with DPA so as to be bound by the 1987 judgment. In Simcox v. Simcox (1989), 131 Ill. 2d 491, 497, 546 N.E.2d 609, 611, our supreme court determined that children who are not parties are not the privies of their parents in dissolution proceedings. Similarly, the first district has refused to hold that a child was the privy of her mother in a paternity action, based on the differing interests of the child and the unwed mother. (Maller v. Cohen (1988), 176 Ill. App. 3d 987, 989-90, 531 N.E.2d 1029, 1031.) The interests of DPA and those of a child in an adjudication of paternity are not identical. DPA’s interests lie in reimbursement of sums provided for the child’s support; the child’s interests encompass rights to all the monetary support to which he is entitled as well as the physical, mental, and emotional support of both parents. Thus, DPA’s interests are primarily retrospective, while the child’s interests are prospective.

Defendant argues that the Act does not permit successive actions to be brought by the different parties statutorily authorized to bring an action under section 7 of the Act. In essence, this is an argument that the bringing of an action by one party precludes the rights of all others. We find this argument to be totally contrary to the legislative intent behind section 7 of the Act. The legislature enacted the Illinois Parentage Act of 1984 (Pub. Act 83 — 1372, eff. July 1, 1985 (1984 Ill. Laws 2627); see Ill. Rev. Stat. 1989, ch. 40, par. 2501 et seq.) expressly to accord several named parties, each having diverse and potentially divergent interests, the right to establish the father and child relationship. (See Majidi v. Palmer (1988), 175 Ill. App. 3d 679, 683, 530 N.E.2d 66, 69.) Therefore, the clearly expressed intent of the legislature would be denigrated if the child’s statutory right to bring an action could be precluded by virtue of an action brought by either the mother or DPA which is subsequently dismissed on procedural grounds.

Courts have determined that section 7 of the Act allows successive causes of action by different parties, particularly where the issue of parentage has not been factually determined because of the dismissal of the prior suit. See Maller, 176 Ill. App. 3d at 991, 531 N.E.2d at 1032; People ex rel. Rice v. Graves (1989), 191 Ill. App. 3d 220, 222, 547 N.E.2d 717, 718.

The defendant raises a hypothetical controversy wherein a putative father is subjected to successive paternity actions involving the same child brought by a series of custodians. However, this appeal does not concern such a case, and we cannot permit hypothetical worst-case scenarios to be the basis upon which we decide the case which is before us. See People ex rel. Partee v. Murphy (1990), 133 Ill. 2d 402, 408, 550 N.E.2d 998, 1001.

Accordingly, for the reasons herein stated, this cause is reversed and remanded to the circuit court of Logan County for further proceedings, i.e., DPA may proceed with its action to adjudicate the paternity of Shaun and for reimbursement of financial assistance provided on his behalf.

Reversed and remanded.

GREEN and McCULLOUGH, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RICHARD L. WILLIAMS, Defendant-Appellee.
    Fourth District
    No. 4-91-0310
    Opinion filed August 29, 1991.
    Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Beth McGann, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel D. Yuhas and David P. Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

This is an appeal by the State from an order of the circuit court of Sangamon County dismissing the charges pending against defendant Richard L. Williams. Defendant was charged with the unlawful possession of a controlled substance. (Ill. Rev. Stat. 1989, ch. 56V2, par. 1402(b).) The petition to dismiss filed by defendant on March 27, 1991, alleged a denial of defendant’s right to a speedy trial by failing to bring defendant to trial within 120 days of October 28, 1991, the date of defendant’s arrest. However, the trial court properly found the appropriate period for assessing a violation of defendant’s right to a speedy trial was the 160-day period provided by the intrastate de-tainer statute (Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 8—10; People v. Lykes (1984), 124 Ill. App. 3d 604, 464 N.E.2d 849) because defendant was incarcerated for a parole violation based on the activity which formed the basis for the criminal charges pending against him in this case. The trial court also found that 170 days had elapsed from the date defendant was arrested to the date of the hearing on the motion to dismiss, April 17, 1991.

On appeal, the only issue raised is whether the trial court erred in dismissing the charges against defendant since he did not make a demand for a speedy trial. No issue is raised on appeal regarding the trial court’s calculation of the elapsed time. Defendant counters by arguing that the State has waived the issue concerning the demand for speedy trial by failing to make such an argument in the trial court.

In any event, we agree with defendant that the State has waived this issue for purposes of review. Waiver applies to the State as well as to criminal defendants (People v. O’Neal (1984), 104 Ill. 2d 399, 472 N.E.2d 441), and the assistant State’s Attorney who argued before the trial court discussed the calculation of the 160-day period, but did not mention the failure of defendant to demand a speedy trial.

Accordingly, the order of the circuit court of Sangamon County is affirmed.

Affirmed.

GREEN and STEIGMANN, JJ., concur.