In re Estate of B.R.S. , 2015 IL App (3d) 150038 ( 2015 )

Illinois Official Reports
Appellate Court
In re Estate of B.R.S., 2015 IL App (3d) 150038
Appellate Court In re ESTATE OF B.R.S. a Minor (Jamie R. Lawson, Petitioner-
Caption Appellee, v. Conaley Michael Aaron and Jessica Erin Aaron,
Respondents-Appellants).
District & No. Third District
Docket No. 3-15-0038
Filed June 12, 2015
Decision Under Appeal from the Circuit Court of Tazewell County, No. 14-P-346; the
Review Hon. Michael D. Risinger, Judge, presiding.
Judgment Vacated and remanded.
Counsel on Robert R. Parker, of Parker & Parker, of Peoria, for appellants.
Appeal
Betty K. Cassidy, of Cassidy Law Office, of Pekin, for appellee.
Panel 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 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
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 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.
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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 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).
¶ 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.
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“(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).
“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.
¶ 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
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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 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
2014).
¶ 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.
¶ 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
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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.
¶ 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.
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