In re Estate of B.R.S.

2015 IL App (3d) 150038, 34 N.E.3d 677

• Court: Appellate Court of Illinois
• Decided: June 12, 2015
• Docket: 3-15-0038
• Status: Unpublished

Opinion

2015 IL App (3d) 150038

Opinion filed June 12, 2015 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2015

In re Estate of B.R.S. ) Appeal from the Circuit Court ) of the 10th Judicial Circuit, a Minor ) Tazewell County, Illinois, ) (Jamie R. Lawson, ) ) Appeal No. 3-15-0038 Petitioner-Appellee, ) Circuit No. 14 P 346 v. ) ) Conaley Michael Aaron and ) The Honorable Jessica Erin Aaron, ) Michael D. Risinger, ) Judge, Presiding. Respondents-Appellants). ) ) _____________________________________________________________________________

PRESIDING JUSTICE McDADE delivered the judgment of the court, with opinion. Justices Holdridge and Wright concurred in the judgment and opinion. _____________________________________________________________________________

OPINION

¶1 Respondents, Conaley and Jessica Aaron (the Aarons), appeal the trial court's denial of

their petition to vacate the order granting Jamie Lawson plenary guardianship of the minor,

B.R.S. Their arguments focus primarily on Lawson's failure to (1) list them as the minor's nearest

kin and her custodians in the petition for guardianship and (2) provide them notice of the

hearing. They assert that these failures were part of a fraud perpetrated by Lawson upon the court in pursuit of custody of the minor. They contend that the omissions render the order voidable and

require the court to conduct a more in-depth review to ascertain whose appointment as guardian

would serve the best interest of the minor. Additionally, the Aarons take issue with section 11-8

of the Probate Act of 1975 (755 ILCS 5/11-8 (West 2014)) and challenge its constitutionality.

They argue that on its face this section thwarts their fundamental right to due process as it

confers an interest in the proceeding but retracts the need for notice allowing them to participate

in the disposition of the case. Lastly, they claim that Lawson should be estopped from

guardianship as a matter of law as her parental rights were relinquished in the adoption of the

minor by the newly deceased parent. We agree that the trial court erred in denying the Aarons'

motion to vacate. We remand the case for proceedings in accord with this opinion.

¶2 FACTS

¶3 B.R.S. was born to Jamie Lawson and Justin Shannon in 2005. In 2009, both parents

relinquished their parental rights and their daughter was adopted by her paternal grandmother,

Cindy Fincham. On October 31, 2014, Cindy passed away.

¶4 On November 7, 2014, Lawson petitioned the court for emergency and temporary

guardianship of the minor. In the petition she acknowledged the relinquishment of her parental

rights but claimed that the minor was now "without a guardian or any person who [could]

provide for the child's care." She listed how her circumstances had changed, alleged that Justin's

had not changed, and argued that her guardianship would be in the best interest of the minor.

¶5 At the hearing on the matter, Lawson testified to her current personal status, including her

marriage, residence, income, and other household members. 1 She told the court she had regular

1 The record on appeal does not include a transcript of the November 7, 2014 hearing on Lawson's petition

for temporary guardianship. Statements from Lawson's testimony at that hearing are gleaned from the transcript of

2 contact with the minor and again informed the court that the minor was now "without a guardian

or any person who can provide for the child's care including medical care." Lawson stated that at

the present time the minor was with Justin. However, Jamie did not note this in her petition or

include the address of the minor. Despite the fact that the petition was styled as a request for

temporary guardianship, the court granted Lawson plenary guardianship. Accompanied by

police, Lawson promptly went to forcibly retrieve the child from Justin, the Aarons, and several

other relatives who were attending the funeral service for Cindy. She was prevailed upon to let

the child remain for Cindy's funeral.

¶6 On November 14, the Aarons motioned for the court to vacate its ex parte order granting

plenary guardianship to Lawson. At the motion hearing, the Aarons enumerated significant

omissions from Lawson's petition for guardianship of information mandated by section 11-8 of

the Probate Act of 1975 (Probate Act) (755 ILCS 5/11-8 (West 2014)). They stated the petition

was missing the correct address of the minor, the names and addresses of the minor's nearest

relatives, including the Aarons, and the name and address of the person having custody of the

minor. They also noted the omission of the approximate value of the minor's personal estate and

the fact that the minor's gross income and receipts from social security would be approximately

$1,800 per month. Lawson also omitted her occupation as a stripper at Club Cabaret. Lastly,

they submitted proof that the minor had not been covered on health insurance presumably by

Lawson even though providing medical care was one of the several purposes Lawson petitioned

for the award of guardianship. The Aarons alleged that collectively the defects amounted to fraud

the hearing on the Aarons' motion to vacate, which is in the record, where recounts of the petition hearing are

discussed, as well as Lawson's appellate brief.

3 and that proper notice of the petition should have been given to them. It is, they argued, thus

void.

¶7 Lawson contended that notice is not mandatory and failure to provide such would leave

the order of the court only voidable. Additionally, she, and the court, asserted that they simply

did not think about other relatives, including brothers, sisters, aunts, and uncles, requiring notice

under the Probate Act. The court also stated it did not find notice to Justin required, even though

legally he is the minor's brother, as he was "not related anymore" pursuant to the relinquishment

of his parental rights.

¶8 Although conceding a lot of things could have been done differently, the court denied the

Aarons' petition despite their other evidence of the significance and closeness of their

relationship with the child. The judge stated that the minor needed "a guardian. And I can't do a

temporary guardianship, so what was left --- was a plenary guardianship. That's what I ordered."

The court declined to find that there had been fraud with respect to the defects in Lawson's

petition and held that the lack of notice had no effect on his jurisdiction to rule on the case. The

court did express its frustration with the structure of the statute noting that "[the legislature] put

down that you have got to give notice to any relative named in the petition, so how do you get

around that? Just don't name them."

¶9 The Aarons timely appealed.

¶ 10 ANALYSIS

¶ 11 We review the denial of a motion to vacate for an abuse of discretion. Berg v. Mid-

America Industrial, Inc., 293 Ill. App. 3d 731, 734 (1997). Where our decision requires

construction of the statute, our review is de novo. Feltmeier v. Feltmeier, 207 Ill. 2d 263, 267

(2003).

4 ¶ 12 The court in this case denied the Aarons' motion to vacate its order granting Lawson

plenary guardianship of the minor. Sections 11-8 and 11-10.1 of the Probate Act are pertinent to

the issues raised in this appeal.

"(a) The petition for appointment of a guardian *** of both

the person and estate, of a minor *** must state, if known: (1) the

name, date of birth and residence of the minor; (2) the names and

post office addresses of the nearest relatives of the minor in the

following order: (i) the spouse, if any; if none, (ii) the parents,

adult brothers and sisters, and the short-term guardian, if any; if

none, (iii) the nearest adult kindred; (3) the name and post office

address of the person having the custody of the minor; (4) the

approximate value of the personal estate; (5) the amount of the

anticipated gross annual income and other receipts; (6) the name,

post office address and, in case of an individual, the age and

occupation of the proposed guardian; (7) the facts concerning the

execution or admission to probate of the written designation of the

guardian, if any, a copy of which shall be attached to or filed with

the petition; and (8) the facts concerning any juvenile, adoption,

parentage, dissolution, or guardianship court actions pending

concerning the minor or the parents of the minor and whether any

guardian is currently acting for the minor." (Emphasis added.) 755

ILCS 5/11-8 (West 2014).

5 "Unless excused by the court for good cause shown, it is the duty

of the petitioner to give notice of the time and place of the hearing

on the petition, in person or by mail *** to the relatives *** whose

names and addresses are stated in the petition *** but failure to

give notice to any relative is not jurisdictional." (Emphasis added.)

755 ILCS 5/11-10.1 (West 2014).

¶ 13 The plain language of the statute evidences a clear legislative intent that all the

information it deemed necessary for the court’s determination of the best interest of the child

who is the subject of the guardianship proceeding must be provided to the court. Some of that

information is required to be set out in the petition for guardianship itself. Other information is

to be presented at a hearing of which all immediate relatives and current custodians or short-term

guardians of the child have notice and in which they can be heard in support of or opposition to

the appointment of the petitioner as guardian. Most of the information required by the statute for

a meaningful best interest determination was omitted by Lawson from her petition.

¶ 14 We find that Lawson’s petition for guardianship provided to and accepted by the court

was evasive, duplicitous and plainly noncompliant with the statute. The petition submitted by

Lawson is devoid of such basic information as: the current whereabouts and custodian of the

child, the identification and location of her closest relatives, any estate and income of the child,

and even, as the person seeking guardianship, her own occupation. This petition would be

glaringly deficient even if prepared by Lawson herself. It is exceedingly troubling that it was

prepared and submitted by a licensed attorney, who is presumed to know the applicable law and

has been trained to comply with legal requirements.

6 ¶ 15 Despite the deficiencies in the petition, the trial court awarded permanent or plenary

guardianship to Lawson. Even after being made aware of the identification of close adult

relatives and of other salient information omitted from Lawson’s petition, the court refused to

vacate the challenged order.

¶ 16 We consider the three conclusions reached by the trial court to justify its refusal to vacate

its order awarding Lawson guardianship of the minor child.

¶ 17 First, concerning the fundamental issue of its jurisdiction, there is no dispute that the

court had subject matter jurisdiction to consider and determine the issues presented by Lawson’s

petition for guardianship and the Aarons’ motion to vacate the guardianship. According to the

plain language of the statute, the petitioner’s failure to provide notice to proper parties does not

divest the court of this jurisdiction. 755 ILCS 5/11-10.1 (West 2014) ("failure to give notice to

any relative is not jurisdictional"). See In re Estate of Neuf, 85 Ill. App. 3d 468, 470 (1980)

(court denied petition as notice was not required and had a guardian ad litem assess the

petitioner's ability to care for the stroke victim/relative). The significance of this fact is that a

judgment entered by the court in the absence of such notice is not void from its inception. It is,

however, voidable and errors relative to the judgment can and should be corrected. See People v.

Mescall, 379 Ill. App. 3d 670, 673 (2008).

¶ 18 Second, the fact that a failure to give notice is not jurisdictional is not tantamount to a

finding that notice is not mandatory. To the extent that In re Marriage of Frazier, 205 Ill. App.

3d 621, 623 (1990), holds otherwise, we believe it was wrongly decided. Again, the plain

language of the statute clearly demonstrates the mandatory nature of the notice to the Aarons and

to Justin of a hearing on Lawson’s guardianship petition. Section 11-8 of the Probate Act says

the petition "must state, if known *** (2) the names and post office addresses of the nearest

7 relatives of the minor in the following order *** (ii) the parents, adult brothers and sisters, and

the short-term guardian, if any; if none, (iii) the nearest adult kindred." 755 ILCS 5/11-8 (West

2014).

¶ 19 Lawson attempted to explain the omission of the Aarons and Justin by claiming that she

“didn’t think about” them. There is, however, no dispute that they were known to her. We find

her claim undercut, first, by the fact that, in preparing the petition, competent counsel would

have sought the specific information required by the statute from the client, triggering her

recollection of the existence of the child's relatives, and, second, by the additional fact that

immediately upon receiving the order, Lawson went, accompanied by the police, to forcibly

wrest the child from the custody of the very persons she failed to acknowledge or identify in the

petition. It is without consequence that the trial judge also did not think about them. He was not

under a statutory obligation to do so.

¶ 20 Further regarding whether providing notice was mandatory, section 11-10.1 tells us that

unless the court has found good cause to excuse the notice—which the court indicated it had

not—"it is the duty of the petitioner to give notice of the time and place of the hearing *** to the

relatives *** whose names and addresses are stated in the petition." 755 ILCS 5/11-10.1 (West

¶ 21 It is the petitioner’s statutory obligation to provide, inter alia, the names of the minor’s

nearest relatives and adult kin in her petition and her statutory duty to give notice of the hearing

to those persons so named. By failing to identify close relatives and to provide such relatives

with notice of the hearing on guardianship, Lawson deprived the court of its ability to make a full

and fair assessment of all pertinent circumstances and reach an informed decision on

guardianship that was in the best interest of this child.

8 ¶ 22 Third, we consider the trial court’s conclusions that it had no authority under the statute

to grant the temporary guardianship requested in Lawson’s petition and that its order awarding

permanent guardianship could not or should not be vacated. While the trial court is correct that

the Probate Act makes no provision for an award of an emergency or temporary guardianship, its

decision to award permanent guardianship in this case without the information explicitly required

by the statute is incorrect and improvident.

¶ 23 Section 11-5.4 of the Probate Act does provide for the adoptive parent's appointment, in

writing, of a short-term guardian. 755 ILCS 5/11-5.4(a) (West 2014) Section 11-5.3 allows the

written appointment to be made "in any writing, including a will." 755 ILCS 5/11-5.3(a) (West

2014). The record in this case contains no transcript of the ex parte hearing nor otherwise

discloses whether the trial court inquired about the possibility of such an appointment, whether

there was a will, or even if there was verification of the adoptive parent's death. The petition was

filed and the hearing held mere days after Cindy's passing and the record here on appeal does not

show that anything was provided to the trial court other than the petition itself.

¶ 24 By its omissions, Lawson's petition created the false specter of a 10-year-old girl,

orphaned, homeless, fending for herself "without any person who can provide for the child's care

including medical care." This was not a situation where the petitioner provided false information

under oath, where the court could be justified in accepting it at face value; Lawson provided no

responses to critical questions. The court should have stricken her petition and required her to

refile one actually in compliance with the requirements of the statute. Maybe then she would

have also recalled and listed in her petition the relatives she "didn't think of" in the original

petition. In the interim, appointment of a guardian ad litem by the court would have ensured that

proper care was being provided to the child, pending an informed guardianship determination.

9 ¶ 25 We find the trial court (1) erred in awarding Lawson guardianship on the basis of her

deficient petition and (2) abused its discretion by (a) ignoring the material facts of which it had

newly been made aware and which had been omitted from Jamie's petition; (b) denying the

Aarons' petition to vacate its order; and (c) failing to conduct an evidentiary hearing to determine

whose guardianship was in the best interest of the minor. The order is vacated and the matter

remanded for the court to reconsider guardianship in light of all of the known facts and with the

opportunity for involvement of all of the parties designated by the statute. Having so

determined, we need not reach the Aarons' other issues here on appeal.

¶ 26 CONCLUSION

¶ 27 The judgment of the circuit court of Tazewell County is vacated and the matter remanded

for proceedings in accord with this opinion.

¶ 28 Vacated and remanded.