In re Guardianship of A.G.G.

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State: Illinois

Court: 5th District Appellate

Docket No: 5-10-0353 Rel

Case Date: 01/06/2011

Preview:Rule 23 order filed December 10, 2010; Motion to publish granted January 6, 2011.

NO. 5-10-0353 IN THE APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________ In re GUARDIANSHIP OF A.G.G., a Minor ) Appeal from the ) Circuit Court of (Victor Eck, ) Jackson County. ) Petitioner-Appellant, ) ) v. ) No. 10-P-49 ) Jennifer Greer, ) Honorable ) W. Charles Grace, Respondent-Appellee). ) Judge, presiding. ________________________________________________________________________ JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion. Justices Welch and Stewart concurred in the judgment and opinion. OPINION Victor Eck filed a petition for the guardianship of a minor, A.G.G., under the Probate Act of 1975 (Probate Act) (755 ILCS 5/11-5 (West 2008)) in the circuit court of Jackson County. After a hearing, the circuit court denied the petition. On appeal, Victor raises issues regarding whether the circuit court erred by denying the petition on the grounds of standing, without holding an evidentiary hearing on the issue. We reverse and remand with directions. FACTS On April 27, 2010, Victor filed a petition under the Probate Act, seeking the guardianship of A.G.G., a minor, born in 2007. See 755 ILCS 5/11-5 (West 2008). Victor stated that he had been caring for A.G.G. for the previous three years. Victor alleged that A.G.G.'s mother, Jennifer Greer, has been unable and unwilling to care for her and had relinquished that responsibility to him. Victor further alleged that A.G.G.'s biological father was unable and unwilling to care for her, as evidenced by the lack of any involvement in 1

A.G.G .'s life since her birth. At the same time, Victor filed a motion to enter an interim order and appoint a guardian ad litem. The following day the court made a docket entry and entered a separate written order. In the docket entry, the court stated that the petition did not contain any detail on the relationship of Victor to A.G.G. and did not set forth all the allegations required by the Probate Act (755 ILCS 5/11-3 (West 2008)). The docket entry stated that Victor had 14 days to comply and that attorney Eugenia Hunter was appointed as the guardian ad litem . The written order of that date also stated that Hunter was appointed as the guardian ad litem . On May 11, 2010, Victor filed an amended petition for guardianship, in which he alleged that he was not the biological father of A.G.G. but was the only father figure A.G.G. has ever known. On June 2, 2010, the court entered an interim order stating that the cause had been heard on the pending petition for a guardianship and a motion to enter an interim order. The order appointed Hunter as the guardian ad litem and authorized her to appoint Victor as the guardian if she deemed it to be in A.G.G.'s best interests. The order granted custody to Victor for the pendency of the proceedings. On June 7, 2010, Jennifer filed a motion to dismiss the amended petition for a guardianship. Jennifer asserted that the allegations in the amended petition did not overcome the presumption that she is willing and able to carry out day-to-day child care decisions for A.G.G. Jennifer asserted that, thus, the trial court lacked jurisdiction to proceed on the petition. See 755 ILCS 5/11-5(b) (West 2008). Jennifer also filed a motion to vacate the interim order. On June 7, 2010, the court entered several docket entries and a written order. In one of the docket entries, the court stated: "Court hears motion to vacate 6/2/10 Interim Order. Court continues Mot/Vacate, Motion to Dismiss." In the written order, the court set "[a]ll

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pending" matters for June 21, 2010. On June 18, 2010, Victor filed a response to the motion to dismiss. On June 21, 2010, the guardian ad litem submitted a report outlining her interviews of Jennifer, Victor, and A.G.G. The guardian ad litem stated that Jennifer "has difficulty with the truth or an exceptionally faulty memory." The guardian ad litem also noted that despite being educated, Jennifer had a sporadic work record and did not have the ability to support herself. The guardian ad litem reported that Jennifer had lived in approximately nine locations in the previous five years and was homeless at the time of the report. The guardian ad litem concluded as follows: "If this were a custody case in which 'best interest' was the legal issue, I would have no hesitancy in recommending that the best interests of [A.G.G.] were with Victor Eck. This is, however, a guardianship case in which the standard is different and more complex. For this reason, I would prefer to withhold a recommendation until the evidence and testimony are presented." On June 21, 2010, the court called the case for a hearing. The court began by discussing Jennifer's motion to dismiss for a lack of standing. Upon direct questioning by the court, the guardian ad litem responded that she thought Jennifer was entitled to an evidentiary hearing on the issue of standing. At that point, counsel for Jennifer stated that Victor had to meet the threshold of standing before the best interests of the child could be considered and that the guardian ad litem 's opinion should be limited to the issue of best interests. The court responded, "[The report of the guardian ad litem ] has raised some concerns that the Court had and I think that this Court does have the inherent power, whether or not we get past that initial step, to look out for the best interest of the child; and I have some real concerns that have been raised by the guardian ad litem 's report and we're going to have evidence today and I'm going to make a determination."

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Jennifer's counsel responded by asking the court whether this meant that the motion to dismiss had been denied. The court responded by asking if Jennifer's counsel would like to make an argument or statement for the record. The colloquy continued: "[Counsel for Jennifer:] Certainly, your Honor. Then I would just like to state for the record that it is my understanding that the motion to dismiss this petition for guardianship has actually been based on a best standards or best interest of the child's standard and not on the statute under the Probate Act? THE COURT: Are you asking the Court a question, Ms. Coward? [Counsel for Jennifer:] I

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