Crail v. York

442 N.E.2d 333, 110 Ill. App. 3d 302, 66 Ill. Dec. 61, 1982 Ill. App. LEXIS 2446
CourtAppellate Court of Illinois
DecidedNovember 17, 1982
DocketNo. 4—82—0232
StatusPublished
Cited by16 cases

This text of 442 N.E.2d 333 (Crail v. York) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Crail v. York, 442 N.E.2d 333, 110 Ill. App. 3d 302, 66 Ill. Dec. 61, 1982 Ill. App. LEXIS 2446 (Ill. Ct. App. 1982).

Opinions

PRESIDING JUSTICE GREEN

delivered the opinion of the court:

In this case we face again the difficult problems arising in proceedings where natural parents seek to have returned to them the rights and responsibilities previously placed in others by court order. On June 3, 1980, pursuant to the petition of Charles R. and Mary A. Grail under section 11 — 5 of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. HOVa, par. 11 — 5), the circuit court of Macon County entered an order appointing petitioners guardians of the estate and person of Damion E Wadman, then a four-year-old boy. Respondent, Kirsten York, the natural mother, and apparently, sole person claiming parental rights, had filed a written consent to entry of the order. On April 15, 1982, pursuant to the request of respondent York, the court entered an order terminating the guardianship and returning the child to her custody.

Petitioners have appealed raising issues concerning (1) the standards the court should have applied in making its ruling, and (2) whether the ruling was contrary to the manifest weight of the evidence. More particularly petitioners assert: (1) the guardianship should not have been terminated absent a showing of change in circumstances since entry of the order appointing the guardians; (2) the trial court should have followed the detailed guidelines set forth in section 610 of the Illinois Marriage and Dissolution of Marriage Act (111. Rev. Stat. 1981, ch. 40, par. 610); (3) the termination was not proved to be in the best interests of the child; and (4) the respondent mother was shown to be unfit.

In determining the standards applicable to the court’s decision, we must first examine the statute under which the proceeding was brought. The only reference in the Probate Act of 1975 to the termination of the guardianship of a minor is section 11 — 14.1, which states, “[u]pon the minor reaching the age of majority, the letters of office shall be revoked and the guardianship shall be terminated.” (Ill Rev Stat. 1979, ch. llO1^, par. 11 — 14.1.) The Act makes no express reference to the termination of the guardianship of a minor who has not reached the age of majority. The parties have proceeded on a theory that section 23 — 2 of the Act (Ill. Rev. Stat. 1979, ch. llOVa, par. 23 — 2) providing for removal of a “representative” covers the termination of a guardianship of a minor who has not reached the age of majority. A guardian is a “representative” within the definition used in the Act. Ill. Rev. Stat. 1981, ch. llO1^, par. 1 — 2.15.

Section 23 — 2 is divided into subsections (a) and (b). Subsection (b) concerns removal of certain representatives if they become nonresidents and is not applicable here. Subsection (a) is geared primarily to removal of the representative for misconduct or inability to serve but also provides in subsection (a)(10) for removal for “other good cause.” (Ill. Rev. Stat. 1979, ch. HOVz, par. 23 — 2(a)(10).) Although few cases have touched on the applicability of section 23 — 2(a)(10) to proceedings of the nature here, in the case of In re Estate of Brown (1982), 103 Ill. App. 3d 470, 431 N.E.2d 457, the Appellate Court for the Fifth District indicated, by way of dictum, that section 23 — 2 would be applicable to proceedings to terminate the guardianship of a minor and to return the minor to parental custody. However, the court held that the “good cause” provision of subsection (a)(10) referred only to cause arising from malfeasance by or inability of the representative.

We agree that section 23 — 2(a)(10) is applicable to the termination of a guardianship of a minor prior to the minor’s reaching majority. Otherwise there would be no way to terminate a guardianship in such a situation. We do not agree that “other good cause” includes only situations where the representative has committed malfeasance. If that were so, no procedure would exist to return a child to the custody and control of a parent when that parent had become an able and proper person to make the parental decisions for a child, but the previously appointed guardian had served properly and continued to be able to do so. Accordingly, we hold that section 23 — 2(a)(10) was properly invoked here even though the major thrust of the mother’s contentions before the trial court in seeking termination made no claim of any malfeasance or inability of the guardians but referred to her right as a parent to care for the child and her ability to do so.

As the Probate Act of 1975 sets forth no standards for the proceeding for termination involved here, we must look elsewhere for such standards. However, the supreme court has spoken recently in the case of In re Custody of Townsend (1981), 86 Ill. 2d 502, 427 N.E.2d 1231, as to criteria crucial to all cases where custody of children are in issue. Although this case involves guardianship of the person of a child which includes rights and responsibilities in addition to custody, there as here, the dispute was between a natural parent and those not a parent. The Townsend court deemed the two most significant elements to be the superior right of parents to custody of their children and the concern of the court for the best interests of the child. Citing People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201, 247 N.E.2d 417, the court held a nonparent seeking to acquire or retain the custody of a child against a parent had “the burden of demonstrating good cause or reason to supersede the superior right” of the parent. In re Custody of Townsend (1981), 86 Ill. 2d 502, 514, 427 N.E.2d 1231, 1237.

The Townsend court also said that courts should give significance to the claim of a nonparent “who has had actual or legal custody of the child for a substantial period of time, especially if the evidence shows that the child has become an integral member of a true family unit. [Citations.]” (86 Ill. 2d 504, 515, 427 N.E.2d 1231, 1238.) There, no prior court order of custody had been entered, and the court had no reason to address any requirement for showing a change in circumstances before a court should modify a custody order. Previous cases concerning modification of child custody in a divorce proceeding (Nye v. Nye (1952), 411 Ill. 408, 105 N.E.2d 300) and alteration of guardianship of the person (Hohenadel v. Steele (1908), 237 Ill. 229, 86 N.E. 717) have stated a change in circumstances is necessary before a court will alter a custody or guardianship order. The logic of this rule is that absent a change in circumstances, a court would be merely ruling on the exact issue previously decided. We conclude that some showing of a change in circumstances is necessary to support an order terminating a guardianship. As we later explain, a sufficient showing of change was made here.

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Cite This Page — Counsel Stack

Bluebook (online)
442 N.E.2d 333, 110 Ill. App. 3d 302, 66 Ill. Dec. 61, 1982 Ill. App. LEXIS 2446, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crail-v-york-illappct-1982.