In re Estate of Felipe

2022 IL App (2d) 210272-U

• Court: Appellate Court of Illinois
• Decided: January 26, 2022
• Docket: 2-21-0272
• Status: Unpublished

Opinion

2022 IL App (2d) 210272-U No. 2-21-0272 Order filed January 26, 2022

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

In re Estate of SULMA ARELI ) Appeal from the Circuit Court SALVADOR FELIPE, a minor ) of Du Page County. ) ) No. 21-P-38 ) (Rocio Becerril, Petitioner-Appellant v. ) Honorable Sonia M. Felipe Garcia and Juan A. ) James D. Orel, Salvador Mendoza, Respondents-Appellees). ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SCHOSTOK delivered the judgment of the court. Presiding Justice Bridges and Justice Zenoff concurred in the judgment.

ORDER

¶1 Held: Appellant did not demonstrate that trial court abused its discretion in denying guardianship petition and motion to reconsider.

¶2 The petitioner, Rocio Becerril, filed a petition to be appointed guardian of the person of

Sulma Areli Salvador Felipe. Rocio also asked that, after appointing her, the trial court make

findings that would allow Sulma, an unaccompanied juvenile from Guatemala who fled violence

and sexual assault, to apply for a particular immigration status. The trial court summarily denied

the guardianship petition and the motion for findings. Two days later, Sulma turned 18. Rocio

moved for reconsideration and for an order granting guardianship nunc pro tunc, noting that the

trial court’s stated reason for denying the petition was legally incorrect, and submitting extensive 2022 IL App (2d) 210272-U

documentation supporting the petition. The trial court denied the motion to reconsider, and Rocio

appealed. Although we agree that the trial court made a legal error in its initial ruling, we

nevertheless affirm for the reasons explained below. We also note that, because of a recent

amendment to section 11-5.5 of the Probate Act (755 ILCS 5/11-5.5(e)(1) (West 2020)), our

decision does not foreclose Sulma and Rocio from achieving the end they seek.

¶3 I. BACKGROUND

¶4 The following facts are drawn from the verified pleadings. Sulma was born on January 23,

2003, in Guatemala. Her cousins became angry at her father and determined to harm her as a way

of hurting her father. One of the cousins, who was known to have killed someone, physically and

sexually assaulted her, and two other cousins threatened to rape her. Sulma’s parents could not

keep her safe and Sulma fled Guatemala. She entered the United States in November 2018. She

was detained in the custody of the Department of Homeland Security (DHS) and resided at a shelter

for a little more than two years.

¶5 Rocio applied to sponsor and become a guardian for Sulma. After conducting an extensive

background review on Rocio that included a CANTS check by the Illinois Department of Children

and Family Services, the Office of Refugee Resettlement (ORR) approved Rocio as Sulma’s

sponsor and caretaker. They released Sulma into Rocio’s custody on December 19, 2020. Rocio

filed the guardianship petition on January 11, 2021, attaching a nomination form in which Sulma

nominated Rocio to be her guardian. The petition was set to be heard on January 21.

¶6 On January 20, Rocio filed a motion for special immigrant juvenile status (SIJS) findings.

The Immigration and Nationality Act (8 U.S.C. § 1101 et seq. (2018)) allows an immigrant who

meets the requirements for SIJS to avoid removal and eventually to apply for legal permanent

residency in the United States. See id. § 1255(h). To be eligible for SIJS, a person must be placed

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in the custody of an adult guardian by a state court, and the court must find that reunification of

the person with one or both parents is not viable due to abuse, neglect, abandonment, or a similar

basis, and it is not in the person’s best interest to be returned to his or her country of nationality.

Id. § 1101(a)(27)(J). State law—in Illinois, the Probate Act—spells out the requirements for SIJS

proceedings in Illinois courts. See 755 ILCS 5/11-5.5 (West 2018). Rocio’s motion for SIJS

findings detailed the Illinois and federal statutes governing SIJS and the facts showing that Sulma

met the statutory requirements. At the time, section 11-1 of the Probate Act defined a “minor” as

someone under the age of 18, and section 11-5.5 did not contain any different definition. See id.

§§ 11-1, 11-5.5.

¶7 Rocio noticed up the motion to be heard on January 21 at the same time as the guardianship

petition. She filed a notice of motion that had been signed by Sulma’s parents, showing that they

had received the motion. The exhibits to the motion, which were in both Spanish and English,

included Sulma’s birth certificate and consents to the appointment of Rocio as Sulma’s guardian

that were signed by both of Sulma’s parents.

¶8 When the case was called, Rocio’s attorney stepped up and advised the trial court that a

Spanish interpreter would be needed. The trial court indicated that it did not know how long it

would take to get the interpreter there and that it would either pass the case or, if the interpreter

were not available, continue the case to another date. The attorney asked not to continue it if

possible, as Sulma would turn 18 two days later, on January 23. The trial court reacted negatively:

“And you’re asking me to approve everything in one day without any looking into

the Guardian ad Litem, with the Guardian ad Litem that I’m required to.

***

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That’s not going to work. I don’t operate that way. I’m sorry. I don’t know

anything about the guardian that you’re attempting to bring in and to give me one day’s

notice, one business day left, it’s not going to work.

Cancel the interpreter. There’s no way I’m going to appoint a guardian without an

investigation. There’s just no way. That’s not according to statute. So I can deny your

petition. You can withdraw it, whatever you want to do. But you’re not going to, you’re

not going to operate that way in this courtroom.”

The written order stated, at the trial court’s direction, that the petition for guardianship was denied

because “appointment of a Guardian Ad Litem (GAL) is required by the Probate Act and there is

not sufficient time before the Minor’s 18th birthday to appoint a Guardian Ad Litem (GAL) and

receive that GAL’s investigation report. Minor turns 18 in 2 days. This is initial date on

presentation of petition[;] court further has no backgroung [sic] on Guardian requested by

petitioner.”

¶9 Rocio filed a motion to reconsider the trial court’s rulings on the guardianship petition and

the motion for SIJS findings. In it, she pointed out that the Probate Act did not require an

investigation by a GAL before a guardian could be appointed, nor did any Illinois Supreme Court

Rule or local rule require such an investigation. Additionally, she argued that, although the trial

court had the power and discretion to appoint a GAL if necessary, here it was not necessary and

imposed a substantial burden on Sulma, who faced the imminent risk of aging out of the

“dependent minor” status she needed to apply for SIJS. Rocio also contended that she met the

Probate Act’s requirements for appointment as a guardian for Sulma, noting that DHS had

conducted an extensive background investigation of her already and attaching the documentation

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of that investigation. Rocio asked the trial court to reverse its previous denial, and grant the

guardianship and make the SIJS findings nunc pro tunc.

¶ 10 On March 4, 2021, the trial court refused to hear argument on the motion to reconsider

because it had not received courtesy copies of the motion and had not reviewed it. During the

colloquy, Rocio noted that, because Sulma had been released from ORR custody only a short time

before her 18th birthday, Rocio had not been able to bring her guardianship petition earlier. She

further noted that both of Sulma’s parents had consented to the guardianship. The trial court

continued the hearing to April 7, 2021. On that day, the trial court again declined to hear the case

as the clerk had not docketed the date despite the entry of the earlier continuance in a formal order.

In addition, although Rocio had forwarded courtesy copies to the judge’s own email, the judge

could not accept direct communications from the parties and instead required that everything be

sent to the judge’s clerk’s email. The trial court again continued the case, to April 20.

¶ 11 On April 20, the trial court began the hearing with its ruling. Despite indicating that it

planned to “hear the merits” of the motion, it immediately began explaining why it would deny

the motion. At no point did the court offer Rocio any opportunity to present oral argument. The

court first noted the requirements for a motion to reconsider and noted that the sole basis for the

motion was the contention that it had erred in its previous application of existing law. However,

the court stated, the Probate Act gave it discretion in determining whether to grant a guardianship

petition. The court said that the petition was only noticed up on January 20 for a hearing the next

day, and the trial court did not know if it was an emergency. The trial court continued:

“And the biggest problem that the Court had at that time was that the ward, the

alleged ward, was going to turn 18 the following Saturday or Sunday. So what the

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petitioner asked this Court to do in one day was to look at the petition and grant a

guardianship to someone this Court has never seen or heard from.

Now, the order that has been presented by [Rocio’s attorney] today indicates that

this ward is now over the age 18 yet she wants me to declare in the order that she’s a minor.

So the motion has problems; the proposed order has problems; you’re not telling me how

I erred in the motion, so for those reasons, I’ll deny without prejudice.”

The trial court noted that the case was now “closed.” This appeal followed.

¶ 12 II. ANALYSIS

¶ 13 We note that the appellees have not filed a brief in this court and Rocio’s brief is the only

one before us. However, as the arguments raised by Rocio are relatively straightforward, we may

consider them without the aid of an appellees’ brief pursuant to First Capitol Mortgage Corp. v.

Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976). We therefore turn to the substance of the

appeal.

¶ 14 On appeal, Rocio asks us to reverse the trial court’s ruling. That outcome is not appropriate

here, as we explain. However, our decision does not leave Rocio (or Sulma) without recourse.

¶ 15 A court has broad discretion in deciding whether to appoint a guardian. In re Estate of

Green, 359 Ill. App. 3d 730, 735 (2005). Thus, we will reverse its decision only where an appellant

demonstrates that the trial court abused that discretion. Id. A trial court abuses its discretion when

its ruling is arbitrary, fanciful, or unreasonable, or no reasonable person would take the view

adopted by the trial court, or when its ruling rests on an error of law. People v. Olsen, 2015 IL

App (2d) 140267, ¶ 11.

¶ 16 Here, the trial court appeared to base its decision to deny the guardianship petition (and

thus to also deny the motion for SIJS findings) largely on its belief that the Probate Act required it

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to appoint a GAL to investigate the potential guardian before any appointment could be made.

This was error. The Probate Act contains no such requirement. To the extent that its ruling rested

on this error of law, it was an abuse of discretion. Olsen, 2015 IL App (2d) 140267, ¶ 11.

¶ 17 However, as the trial court noted during the hearing on the motion to reconsider, the “main

problem” preventing the trial court from granting the guardianship petition was that it was not

sufficiently familiar with Rocio’s qualifications and fitness to act as Sulma’s guardian. Its concern

with these matters was perfectly appropriate; a trial court must be careful to ensure that the

appointment of a guardian is in a child’s best interests. Green, 359 Ill. App. 3d at 735. And

although the trial court often acted abruptly when considering the issues in this case (and perhaps

would have benefitted from perusing the pleadings on file more carefully), we must note that

counsel for Rocio largely failed to draw the trial court’s attention to facts supporting the

guardianship petition. For instance, although Sulma’s parents had acknowledged receiving the

motion for SIJS findings and had consented to the appointment of Rocio as Sulma’s guardian, the

attorney never advised the trial court of these facts. Similarly, counsel did not advise the trial

court, at the initial hearing, of the reason for the time constraints or the fact that Rocio had already

undergone an extensive investigation and approval process by federal and state agencies before

Sulma was released to her care.

¶ 18 We understand that counsel may have found the forcefulness and abruptness of the trial

court’s manner intimidating. However, an advocate bears responsibility for bringing the evidence

that supports her client’s case to the attention of the court, and even in the face of a hostile court

must seek to make a record. Without such a record, she cannot prevail on appeal. Given the trial

court’s lack of information and its responsibility to safeguard Sulma’s best interests, its denial of

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the guardianship petition and the motion for SIJS findings was not arbitrary or unreasonable, and

thus was not an abuse of discretion. Olsen, 2015 IL App (2d) 140267, ¶ 11.

¶ 19 As for the motion for reconsideration, the trial court acted properly in denying it because

the relief sought by Rocio—the entry of an order granting the guardianship petition and motion

for SIJS findings nunc pro tunc—was not possible. A nunc pro tunc order can be used to correct

the record to accurately reflect a prior ruling that was actually made. See Kooyenga v. Hertz

Equipment Rentals, Inc., 79 Ill. App. 3d 1051, 1058 (1979). The correction then applies from the

date of the prior order, as if the prior order had contained the correction to begin with. Id. at 1059.

However, a nunc pro tunc order cannot be used to enter an entirely new ruling upon

reconsideration, which is what Rocio requested. See People v. Jessie B., 327 Ill. App. 3d 1084,

1089 (2002). The trial court was correct that it simply was not empowered to reverse its earlier

ruling through a nunc pro tunc order.

¶ 20 We understand why Rocio sought to reverse the trial court’s ruling retroactively, as Sulma

was no longer under the age of 18 at the time Rocio filed the motion for reconsideration. Thus,

when Rocio’s motion for reconsideration was filed and heard, Sulma was no longer a “minor” as

that term was defined in the Probate Act. See 755 ILCS 5/11-1 (West 2018)) (defining “minor”

as “a person who has not attained the age of 18 years”); compare id. § 11-5.5 (governing

proceedings for the entry of SIJS findings; no contrary definition of “minor”). Unfortunately for

Rocio, the trial court could not go back in time and simply reach a different decision before Sulma

turned 18.

¶ 21 However, all is not lost for Sulma and Rocio. During the pendency of this appeal, the

Probate Act was amended, and it now defines “minor” more expansively to include persons

between the ages of 18 and 21 for the limited purpose of SIJS proceedings. See 755 ILCS 5/11-

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5.5(e) (2020), as amended by P.A. 101-121 (eff. Aug. 6, 2021). Thus, Sulma now qualifies as a

“minor” despite being over the age of 18, and Rocio may file a new petition for guardianship and

motion for SIJS findings. We emphasize that nothing in our affirmance of the trial court’s previous

actions in this case should be construed to preclude or limit in any way the fresh consideration of

any such new petition and motion. See Hayashi v. Illinois Department of Financial and

Professional Regulation, 2014 IL 116023, ¶ 46 (if, after judgment was rendered, there has been a

change in the facts or the law that establish a new basis for the parties’ claims or defenses, res

judicata does not apply and a subsequent action is not barred). Further, we are mindful of the

Code of Judicial Conduct, Illinois Supreme Court Rule 63(A)(3), which provides that “A judge

should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with

whom the judge deals in an official capacity” (Ill. S. Ct. R. 63(A)(3) (eff. Dec. 16, 2020), requiring

a judge to maintain an impartial attitude and exercise a high degree of patience and forbearance

with litigants and counsel. We strongly recommend that the trial judge who handles the new

petition exercises sufficient patience to allow her counsel to present her case fully.

¶ 22 III. CONCLUSION

¶ 23 For the reasons stated, the judgment of the circuit court of Du Page County is affirmed.

¶ 24 Affirmed.

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