In re Custody of K.N.L.

2019 IL App (5th) 190082

• Court: Appellate Court of Illinois
• Decided: July 2, 2019
• Docket: 5-19-0082
• Status: Unpublished

Opinion

2019 IL App (5th) 190082 NOTICE Decision filed 07/02/19. The text of this decision may be NO. 5-19-0082 changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of IN THE the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

In re CUSTODY OF K.N.L., a Minor ) Appeal from the ) Circuit Court of (Gary Ferrari and Rebecca Ferrari, ) Randolph County. ) Petitioners-Appellants, ) ) v. ) No. 18-F-19 ) Bethany Nicholle Moore, ) Honorable ) Eugene E. Gross, Respondent-Appellee). ) Judge, presiding. ______________________________________________________________________________

JUSTICE WELCH delivered the judgment of the court, with opinion. Presiding Justice Overstreet and Justice Chapman concurred in the judgment and opinion.

OPINION

¶1 The petitioners, Gary and Rebecca Ferrari, appeal the Randolph County circuit court’s

dismissal of their petition for allocation of temporary and permanent parental responsibilities

with respect to the minor, K.L., for lack of standing. For the following reasons, we affirm.

¶2 K.L. was born on July 15, 2015, to the respondent, Bethany Nicholle Moore, and

Christopher Liter, petitioner Rebecca Ferrari’s son. On July 18, 2015, the Illinois Department of

Children and Family Services (DCFS) took protective custody of the minor after receiving a

hotline report that K.L. was born substance abused. The State’s petition for adjudication of

wardship alleged that K.L. was neglected due to Moore testing positive for marijuana and opiates

at K.L.’s birth and failing to seek adequate prenatal care. A shelter care hearing was held on July

20, 2015, and DCFS was awarded temporary custody of K.L. On August 15, 2015, K.L. was placed with the petitioners. On September 16, 2015, Moore admitted to the neglect allegations in

the State’s petition for adjudication of wardship. The trial court’s order of adjudication, issued

that same day, warned Moore that she “must cooperate with [DCFS], comply with the terms of

the service plan, correct the conditions that require the child(ren) to be in care, or risk

termination of parental rights.”

¶3 Also on September 16, 2015, Children’s Home and Aid Society caseworker Christa

Garcia filed a dispositional report. It stated that Moore’s service plan was initiated on August 26,

2015, and the permanency goal was for K.L. to return home within 12 months. Moore’s

objectives were to complete substance abuse treatment, parenting education services, and mental

health counseling; to establish independence; and to participate in visitation with K.L.

¶4 On December 8, 2015, Moore and Liter were charged with residential burglary in

violation of sections 19-3(a) and 5-2(c) of the Criminal Code of 2012 (720 ILCS 5/19-3(a), 5­

2(c) (West 2014)). On December 14, 2015, Liter died by suicide while incarcerated in the

Randolph County jail. On March 11, 2016, Moore pleaded guilty to the charges and was

sentenced to four years in the Department of Corrections (DOC); however, the trial court also

found her eligible for the impact incarceration program, in which her sentence would be reduced

to time served upon certification by the DOC that she successfully completed the program.

Moore was accepted into the program on April 18, 2016. On August 18, 2016, she successfully

completed the program and was released from custody. Upon her release, she reinstated regular

visitation with her daughter.

¶5 On May 4, 2017, the trial court entered a permanency order indicating that Moore had

made substantial progress toward returning K.L. home. Garcia’s dispositional reports indicated

that Moore was compliant with her service plan. Another permanency order filed on October 26,

2017, again indicated that Moore had made substantial progress toward returning K.L. home. On -2­ April 4, 2018, Garcia’s dispositional report recommended that guardianship of K.L. remain with

DCFS but that legal custody be granted back to Moore.

¶6 On April 6, 2018, the petitioners filed the petition at issue in this case, seeking temporary

and permanent parenting time and decision-making authority with respect to K.L. This petition

was served on Moore on April 9, 2018, the same day that the trial court filed a permanency order

returning physical custody of K.L. to her.

¶7 On April 25, 2018, the petitioners filed a motion for leave to intervene in the juvenile

case. The State, DCFS, and Moore all objected to the petitioners’ motion.

¶8 On May 24, 2018, the trial court entered an order approving of an agreement reached

between Moore and the petitioners. The petitioners withdrew their motion for leave to intervene

in the juvenile case and were granted monthly weekend visitation with K.L.

¶9 On October 11, 2018, an order of discharge was entered, closing the juvenile matter and

awarding legal custody of K.L. to Moore.

¶ 10 On November 1, 2018, the parties agreed to keep in place the provisions of the temporary

order granting the petitioners monthly weekend visitation with K.L.

¶ 11 On November 5, 2018, Moore filed a motion to dismiss the petitioners’ petition for

temporary and permanent parental responsibilities with respect to K.L. Moore alleged that the

petitioners lacked standing to bring this cause of action pursuant to section 601.2(b)(3) of the

Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/601.2(b)(3) (West 2016)

(jurisdictional requirements for commencing a proceeding for allocation of parental

responsibilities “by a person other than a parent, by filing a petition for allocation of parental

responsibilities *** but only if he or she is not in the physical custody of one of his or her

parents”)). She stated that the petitioners’ proper course of action was pursuant to section 602.9

of the Act (id. § 602.9 (visitation by certain nonparents)). -3­ ¶ 12 A hearing was held on the motion on December 10, 2018. Moore’s counsel requested that

the trial court dismiss the petitioners’ petition with leave to refile pursuant to section 602.9 of the

Act. He asserted that Moore did not voluntarily and indefinitely relinquish custody of K.L.

within the meaning of section 601.2(b)(3) of the Act and therefore the petitioners did not satisfy

their burden to demonstrate standing. The court indicated that an evidentiary hearing was

required to determine whether Moore had voluntarily relinquished physical custody of K.L. in

satisfaction of the statute.

¶ 13 An evidentiary hearing was held on January 23, 2019. Rebecca Ferrari testified that K.L.

was placed in her home by DCFS on August 15, 2015, after she had completed a foster parent

certification. She was responsible for K.L. on a daily basis; her mother watched K.L. when she

was at work. She took K.L. to doctor visits and provided her with her medications, food, and

clothing. On a monthly basis, DCFS would send a caseworker to her house to check on them.

She agreed that K.L. was placed with her at DCFS’s discretion, that she was required to contact

DCFS about any major decisions regarding K.L., and that it could have removed K.L. from her

care at any time.

¶ 14 Ferrari stated that Moore exercised her visitation with K.L. until she went to jail for

residential burglary in 2016; once Moore returned from her inpatient rehabilitation services, she

resumed regular every-weekend visitation. She stated that on April 9, 2018, DCFS returned K.L.

to Moore for a six-month probationary period. She stated that when she received K.L. in 2015,

she was under the impression that she would have physical possession for nine months, since

DCFS told her that was the timeline for most drug-related cases. She agreed that DCFS told her

that her possession of K.L. would likely end at some point because Moore would get K.L. back if

she successfully completed her service plan.

-4­ ¶ 15 After listening to counsel’s arguments, the trial court concluded that Moore did not

voluntarily and indefinitely relinquish her parental rights. It did not believe that Moore’s

admission to the neglect allegations in the State’s petition for adjudication of wardship

constituted a voluntary placement of K.L., noting that a parent who learned that foster parents

could file a custody proceeding against her if she stipulated to DCFS’s allegations would be far

less likely to cooperate with the State. It stated that “the deck’s really stacked against a parent [at

a shelter care hearing] and it’s a very coercive environment for them to admit, to get help, and to

undergo the counseling.” It concluded that the petitioners failed to meet the necessary burden in

order to establish the standing requirement set forth in section 601.2(b)(3) of the Act.

¶ 16 On January 25, 2019, the trial court entered an order dismissing the petitioners’ petition

for temporary and permanent parental responsibilities with regard to K.L. The petitioners appeal.

¶ 17 The Act provides that a person other than a parent may file a petition seeking allocation

of parental responsibilities only if the minor child is not in the physical custody of a parent. 750

ILCS 5/601.2(b)(3) (West 2016). This statutory section creates a standing requirement that

nonparents must satisfy in order to commence a custody action. In re Custody of Peterson, 112

Ill. 2d 48, 52-53 (1986). This standing requirement is intended to safeguard a natural parent’s

superior right to the care and custody of her children. In re Marriage of Archibald, 363 Ill. App.

3d 725, 736 (2006).

¶ 18 The nonparent bears the burden of proving that he or she has standing. Id. The

determination must be made on the date relief is sought by the nonparent. Id. at 735. Whether a

party has standing to pursue a custody petition under section 601.2 of the Act is a question of law

and is reviewed de novo. In re A.W.J., 316 Ill. App. 3d 91, 96 (2000).

¶ 19 In order to establish standing, the nonparent must show that the natural parent has

relinquished “physical custody” of the child within the meaning of the statute. In re Marriage of -5­ Rudsell, 291 Ill. App. 3d 626, 632 (1997). A determination of “physical custody” does not turn

on possession; rather, it requires that the parent somehow voluntarily and indefinitely

relinquished custody of the child. Id. Not every voluntary turnover of a child will deprive the

parent of physical custody. A.W.J., 316 Ill. App. 3d at 96. Rather, the court must consider such

factors as (1) who was responsible for the care and welfare of the child prior to the initiation of

custody proceedings, (2) the manner in which physical possession of the child was acquired, and

(3) the nature and duration of the possession. Id.

¶ 20 There is no dispute that, on the date that the petitioners filed their petition, they were in

physical possession of K.L., and DCFS maintained legal custody and guardianship. 1 The parties

agree that the issue presented to this court is whether Moore voluntarily and indefinitely

relinquished physical custody of K.L. under the meaning of the statute. We conclude that the trial

court properly determined that she did not.

¶ 21 In reaching this determination, we first consider who was responsible for K.L. prior to the

initiation of custody proceedings. The record reflects that, for an approximately 2½-year period

prior to filing their petition, the petitioners were performing most of the caretaking functions for

K.L. This factor favors the petitioners.

¶ 22 However, we find that the remaining factors favor Moore. The second factor to consider

is the manner in which physical possession of K.L. was acquired. The juvenile case record shows

that, after being awarded temporary custody of K.L. at the shelter care hearing, DCFS placed

K.L. with the petitioners following Moore’s stipulation to the allegations against her. Moore lost

legal custody and physical possession of K.L. temporarily; however, she understood that if she

1 Moore noted both before the trial court and this court the fact that, while the petitioners’ petition was filed before she regained physical possession of K.L., it was not actually served on her until the same day that she regained possession. However, because we conclude that the petitioners have failed to prove that Moore voluntarily and indefinitely relinquished physical custody of K.L., we decline to discuss the effect, if any, that this fact has on the outcome of the case. -6­ cooperated with DCFS and successfully participated in her service plan, the permanency goal

was for her to regain custody of K.L. within 12 months. Thus, Moore’s cooperation shows that

she did not intend to indefinitely relinquish physical custody of K.L. As to the issue of

voluntariness, as the trial court aptly pointed out, parents are often advised by their counsel that

their long-term interests are best served by cooperating with the State and admitting to the

allegations against them, particularly, as in this case, when those allegations are easily provable.

Indeed, respondents in juvenile proceedings are repeatedly warned that failure to cooperate with

DCFS risks losing their parental rights. See 705 ILCS 405/1-5(2)(d)(3) (West 2016) (if the child

is alleged to be neglected, the court shall admonish the parents that, if custody or guardianship is

awarded to DCFS, “the parents must cooperate with [DCFS], comply with the terms of the

service plans, and correct the conditions that require the child to be in care, or risk termination of

their parental rights”). There is clearly an absence of meaningful choice in such a situation.

However, even if we considered this a voluntary relinquishment, we reiterate that not every

voluntary turnover of a child will deprive the parent of physical custody. A.W.J., 316 Ill. App. 3d

at 96. There is strong evidence that Moore did not intend permanent relinquishment of custody,

which is an equal consideration in the matter.

¶ 23 Finally, we consider the nature and duration of the possession by the nonparent. Here,

too, the facts of the case clearly favor a finding that Moore did not voluntarily and indefinitely

relinquish custody of K.L. Again, we note that DCFS retained legal custody and guardianship of

K.L. and placed her in the petitioners’ possession at its discretion. Rebecca Ferrari admitted that

DCFS made monthly visits to her home to maintain oversight of K.L.’s care, that it remained

responsible for making all major decisions regarding K.L., and that it could have removed K.L.

from her care at any time. Also, despite lacking physical possession for a lengthy period of time,

Moore regularly exercised her visitation with K.L.; our courts regard this as an important -7­ consideration when determining that a parent has not voluntarily or indefinitely relinquished

physical custody. See Peterson, 112 Ill. 2d at 55; In re Guardianship Estate of Tatyanna T., 2012

IL App (1st) 112957, ¶ 34. Moreover, it was made abundantly clear to both Moore and the

petitioners that their possession of K.L. was temporary. Moore was aware that DCFS’s

permanency goal was to return K.L. to her possession within 12 months. Ferrari admitted that

DCFS told her that K.L. would likely be placed with them for a nine-month period and that

Moore would get K.L. back if she successfully completed her service plan. A parent has not

relinquished physical custody where she expresses her intention to retain custody and the

arrangement is inherently temporary in nature. See Tatyanna T., 2012 IL App (1st) 112957, ¶ 34.

¶ 24 The petitioners clearly had physical possession of K.L. for a 2½-year period and

maintained responsibility for her daily welfare during that time. However, as we have previously

stated, the determination that a parent does not have physical custody of a child does not turn on

possession. Rudsell, 291 Ill. App. 3d at 632. The petitioners’ burden was to demonstrate that they

had standing in the custody proceedings; they were required to show that Moore voluntarily and

indefinitely relinquished physical custody of K.L. Upon our consideration of the factors, we

agree with the trial court that they failed to meet that burden.

¶ 25 For the foregoing reasons, the order of the circuit court dismissing the petitioners’

petition for temporary and permanent parental responsibilities with regard to K.L. is affirmed.

¶ 26 Affirmed.

-8­ 2019 IL App (5th) 190082 NO. 5-19-0082 IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT

In re CUSTODY OF K.N.L., a Minor ) Appeal from the ) Circuit Court of (Gary Ferrari and Rebecca Ferrari, ) Randolph County. ) Petitioners-Appellants, ) ) v. ) No. 18-F-19 ) Bethany Nicholle Moore, ) Honorable ) Eugene E. Gross, Respondent-Appellee). ) Judge, presiding. ______________________________________________________________________________

Opinion Filed: July 2, 2019 ______________________________________________________________________________

Justices: Honorable Thomas M. Welch, J.

Honorable David K. Overstreet, P.J., and Honorable Melissa A. Chapman, J., Concur ______________________________________________________________________________

Attorney Alan R. Farris, 221 South Market Street, P.O. Box 314, Sparta, IL 62286 for Appellants ______________________________________________________________________________

Attorneys Lucas H. Liefer, Benjamin M. Grohmann, Cooper & Liefer Law Office, for 205 East Market Street, Red Bud, IL 62278 Appellee ______________________________________________________________________________

Intervenor Attorney General of Illinois, Civil Division, 100 West Randolph Street, 12th Floor, Chicago, IL 60601 _____________________________________________________________________________