In re Custody of R.W.

2018 IL App (5th) 170377
NOTICE
Decision filed 02/28/18. The
text of this decision may be NO. 5-17-0377
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 R.W.
(Susan Gregory, ) Appeal from the
) Circuit Court of
Petitioner-Appellee, ) St. Clair County.
)
v. )
)
Travia B. and )
Alvernon W., )
) No. 16-F-500
Respondents )
) Honorable
(Alvernon W., Respondent-Appellant; ) Patricia H. Kievlan,
Raphael Hall, Intervenor)). ) Judge, presiding.
________________________________________________________________________
JUSTICE CHAPMAN delivered the judgment of the court, with opinion.
Justices Goldenhersh and Cates concurred in the judgment and opinion.
OPINION
¶1 For most of her life, R.W., the six-year-old child at the center of this dispute, was cared
for by two individuals other than her biological parents—her biological uncle, Raphael Hall, and
an unrelated individual, Susan Gregory. Her biological mother, Travia B., spent time with R.W.,
but she allowed Susan and Raphael to take on the responsibility of caring for her. When R.W.
was an infant, Travia told her biological father, Alvernon W., that he was not the father. After
that, Alvernon had no involvement in R.W.’s life until a petition to establish parentage was filed
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in Missouri. After it was determined that Alvernon was, in fact, R.W.’s biological father, he
sought to become more involved in her life.
¶2 Susan filed a petition for the allocation of parental responsibility and parenting time. The
court found that Susan had overcome the presumption of a parent’s superior right to custody but
did not find that either parent was unfit. It allocated parenting time to all four of the parties, but it
gave Susan sole decision-making responsibility and the majority of parenting time. After
Alvernon filed a motion to set aside the parenting order, the court entered an order finding both
parents to be unfit and a separate order denying Alvernon’s motion. Alvernon appeals, arguing
that (1) the court erred in finding him to be an unfit parent because no party alleged that he was
unfit, (2) the court’s finding of unfitness was against the manifest weight of the evidence, and (3)
the court failed to consider his fundamental constitutional rights as a parent in its parenting order.
Susan filed a motion to strike the portions of Alvernon’s brief addressing the findings of
unfitness, arguing that his notice of appeal does not identify the order containing those findings.
We deny Susan’s motion to strike, vacate the order finding Alvernon and Travia to be unfit, and
affirm the court’s parenting order.
¶3 R.W. was born on July 3, 2011. Alvernon was not at the hospital when Travia gave birth,
but she called him a few hours later, and he arrived within half an hour. At that time, Alvernon
was 20 years old and had no other children. Travia was in her mid-20s and had five other
children. According to Alvernon, he asked Travia if the baby was his, and she told him there was
a possibility that he was not the baby’s father. This angered him, and he left the hospital.
¶4 A week later, however, Travia and Alvernon began to share in the responsibility of caring
for R.W. According to Alvernon, he cared for R.W. Mondays through Fridays, and Travia cared
for her on the weekends. According to Travia, she and Alvernon each cared for R.W. 3½ days
2
per week. This arrangement continued until R.W. was three months old, when Travia arrived at
Alvernon’s home with the police. According to Travia, she called the police that day because
when she arrived to pick up R.W., no one answered the door. She testified that she thought
Alvernon and his family could not hear her knocking on the door. Alvernon testified that, at the
time, he thought Travia called the police because he was not R.W.’s father. In any case, an
officer took R.W. from Alvernon and handed her to Travia, and Alvernon did not see R.W. again
for six months.
¶5 Within days after this incident occurred, Travia brought R.W. to the home of her brother,
Raphael, and asked Raphael to take care of her. Travia testified at the hearing that she did so
because she was evicted from her apartment, forcing her and her children to move in with her
grandmother. Her grandmother suggested asking Raphael to care for R.W. At that time, Raphael
lived with his mother, his long-term partner, Chuck, and his best friend, Candice. At the time of
the hearing, Raphael was still living with Chuck and Candice. Chuck’s teenage daughter also
stayed with them every other weekend.
¶6 Raphael originally rented property in St. Louis from Susan’s parents; however, after
Susan’s father was diagnosed with ALS in 2007, Susan took over management of her parents’
rental properties. She became friendly with Raphael. She knew that Raphael suffered from sickle
cell disease and that he did not have a vehicle or driver’s license. She offered to help him out
when she could, including by driving him to doctor’s appointments. In October 2011, when
Susan learned that Raphael was caring for a baby, she offered to help. Initially, Susan cared for
R.W. at her home in Belleville, Illinois, on weekends, and Raphael cared for her each week from
Monday morning to Friday afternoon. Over time, however, the amount of time Susan spent
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caring for R.W. increased due to various factors, including Raphael’s health, R.W.’s medical
needs, and R.W.’s schooling.
¶7 In 2012, R.W. was diagnosed with cancer. Susan’s mother, Pat, who is a retired nurse,
explained at the hearing that doctors believed R.W. was likely born with cancerous cells in her
fallopian tubes. However, there were no outward signs of the disease until R.W. suddenly fell ill
at nine months old. Pat explained that the cells grew into a tumor, which attached itself to a
blood vessel near R.W.’s ovary. The tumor was thus able to nourish itself and grow very quickly.
Susan and Pat took R.W. to the emergency room on a Friday night. She had a high fever and had
to be stabilized before she could undergo surgery to remove the tumor the following Monday.
¶8 All four of the parties spent much of that weekend at the hospital with R.W., as did
Susan’s mother, Pat, and Raphael’s partner, Chuck. Both Travia and Alvernon testified that they
had a discussion outside the hospital during which Alvernon asked Travia whether he was
R.W.’s father. Travia told him he was not R.W.’s father. Alvernon testified that he was
disappointed by this news but had no reason to disbelieve Travia. He soon moved to Kansas City
with his girlfriend, Mia Sutton. At the time of the hearing, Alvernon and Mia were still together.
¶9 After the surgery, Travia signed a document permitting R.W. to be released to Susan’s
care. The document indicated that Susan’s relationship to R.W. was that of a family friend and
godmother. According to Raphael, one of the reasons for this arrangement was the fact that Pat,
as a nurse, would be best able to administer medications to R.W. After an initial recuperation
period, Susan and Raphael returned to sharing the responsibility of caring for R.W. However, as
mentioned earlier, Susan began taking on a larger share of the responsibility. When R.W. was
released from the hospital, she had to return each Tuesday for blood draws and checkups with
her oncologist. Because Raphael could not drive her to these appointments, Susan began
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bringing R.W. back to his house after her Tuesday appointments instead of on Monday
mornings, as she had done previously. Many weeks, R.W. arrived at Susan’s home on Thursday
rather than on Friday.
¶ 10 Periodically, Raphael was hospitalized as a result of complications from sickle cell
disease. During these periods, Susan cared for R.W. full time. At one point, Raphael underwent
two hip replacement surgeries, the second of which was performed eight weeks after the first.
During his recuperation period, Susan cared for R.W. full time. After he recovered, Raphael and
Susan once again shared the responsibility of caring for R.W.
¶ 11 When R.W. was old enough to begin preschool, Susan looked at preschools near her
home in Illinois. When she discussed the matter with Raphael, he told her that he wanted R.W. to
attend a preschool in St. Louis, near his home. Together, Susan and Raphael visited three
preschools in St. Louis. They decided jointly to enroll her in one of those schools. On the
registration paperwork, Raphael was listed as R.W.’s father and Susan was listed as her mother.
¶ 12 When R.W. entered elementary school, Susan enrolled her at Zion Lutheran, a private
school in Belleville. Susan also enrolled R.W. in several different activities—swimming lessons,
dance classes, Daisies, horseback riding lessons, and Center of Creative Arts, a theater company
in St. Louis. At Raphael’s request, Susan scheduled these activities so they would take place
during her time with R.W. Although Raphael attended many of R.W.’s school events, dance
recitals, and other events, Travia and Alvernon did not.
¶ 13 In 2014, the Missouri Department of Public Aid filed a petition to establish parentage in a
Missouri court. At the hearing in this matter, Travia denied that the petition was filed because
she applied for public assistance on behalf of R.W. She testified that she wanted to establish
paternity in order to “gain full custody from Alvernon.” She claimed that this was because she
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wanted to avoid complications that sometimes arose when she encountered paperwork requiring
the signatures of two parents—for example, when she applied for a passport for R.W. Travia
acknowledged that she listed R.W. as a dependant for purposes of Medicaid.
¶ 14 Alvernon testified that he was unaware of the Missouri parentage case until May 2016,
when he received a notice directing him to submit to DNA testing because he had been named as
the father of R.W. Alvernon was determined to be the father, and he was ordered to pay Travia
$119 per month in child support. Both Travia and Alvernon testified that Alvernon paid more
than this amount. According to Alvernon, he was unaware that R.W. was not living with Travia.
¶ 15 Although Travia did not live with R.W. or take responsibility for her care, she did visit
with her, including occasional overnight visits. Early in the summer of 2016, Alvernon arranged
with Travia to visit with R.W. Raphael and Susan were not happy that Travia arranged this visit
without consulting with them. Susan was afraid that Alvernon might take R.W. back to Kansas
City with him.
¶ 16 On July 19, 2016, Susan filed a petition for allocation of parenting time and parental
responsibilities. She alleged that R.W. had been in her physical custody since approximately
October 2011 and that Travia had failed to show a reasonable degree of care, concern, or interest
in R.W. since that time. Susan further alleged that, “On information and belief,” Alvernon had no
contact with R.W. before the summer of 2016 and that neither parent showed any interest in
R.W.’s education, extracurricular activities, or medical care. She alleged that, “On information
and belief, a support case was opened in St. Louis, Missouri, by the Department of Public Aid,
and an order finding ALVERNON [W.] to be the biological father and to pay child support in the
amount of $119 per month was entered by the Court.” Susan requested that she be given sole
authority to make decisions concerning significant parenting responsibilities and the majority of
6
parenting time. She requested that parenting time be awarded to both Travia and Alvernon, but
she asked that this time be limited to daytime visits at scheduled times. Susan named Travia and
Alvernon as respondents, but she did not name Raphael as a respondent or request that parenting
time be allocated to him. Along with her petition, Susan filed a motion seeking a restraining
order enjoining Alvernon and Travia from removing R.W. from her care or from the State of
Illinois. Susan did not consult with Raphael or Travia before filing the petition, which led to a
breakdown in her previously cordial relationship with Raphael. The court entered an ex parte
temporary restraining order on July 21, and it entered an injunction on July 28.
¶ 17 On August 25, 2016, Travia filed a response to the petition. She requested that she be
given sole decision-making authority for parental responsibility and the majority of parenting
time. She also asked that Susan’s petition be dismissed.
¶ 18 On September 1, 2016, Raphael filed a petition to intervene and for allocation of parental
responsibility and parenting time. He alleged that R.W. was not in the physical custody of either
of her parents. He alleged that she was in Raphael’s physical custody from approximately
October 2011 until July 28, 2016, when Susan was granted sole custody pursuant to a court
order. He repeated the allegations in Susan’s petition concerning Travia and Alvernon. Raphael
requested that he be given sole authority to make decisions concerning significant parental
responsibilities and the majority of parenting time. However, he later filed a proposed parenting
plan that called for Susan and Raphael to share decision-making authority and an equal division
of parenting time between the two of them.
¶ 19 On October 19, 2016, Alvernon filed a motion to dismiss Susan’s petition, a motion for
the appointment of a guardian ad litem (GAL), a response to Susan’s petition, and a proposed
parenting plan. Alvernon requested the majority of parenting time with R.W. and that he be
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given authority to make decisions about significant parental responsibilities. The court denied
Alvernon’s motion to dismiss, a ruling he has not appealed. The court granted his motion to
appoint a GAL and appointed Dustin Hudson to act in that capacity. The court entered a
temporary parenting order that provided Alvernon with supervised visits with R.W. once per
month. The temporary order also set up parenting time for Raphael and Travia.
¶ 20 On June 1, 2017, Hudson filed a report with the court. He noted that in preparing his
report, he interviewed all four of the parties and spoke to R.W. Hudson found that from the time
of R.W.’s surgery onward, Raphael had physical custody of R.W. on Tuesday and Wednesday
nights, and Susan had physical custody of her each week from Thursday through Tuesday. He
found that Susan and Raphael were the only individuals who handled the day-to-day tasks of
caring for R.W. before these proceedings began and that they were also “the only individuals that
have been involved in the significant decision making” for R.W. However, it was “clear to [him]
that Susan essentially made all the significant decisions.” He explained that Susan was the one
who took the initiative to find activities for R.W., even if she generally did so with the approval
of Raphael.
¶ 21 Hudson stated that R.W. was performing well in school, and that Susan helped out at the
school and was “very active” in R.W.’s extracurricular activities. For this reason, he believed
that the statutory best interest factor of the child’s adjustment to her home, school, and
community favored an award of the majority of parenting time to Susan. He explained that R.W.
had many friends at school and that she had “adjusted extremely well to living with Susan and
her mother, Pat.” He also believed that Susan could best provide R.W. with stability, which was
her most important need. He noted that, in reaction to these proceedings, R.W. asked Susan if
she was “trying to give her away.” He opined that R.W. saw Susan’s house as her home.
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¶ 22 Hudson discussed his conversation with R.W. in the report. He stated that she seemed to
genuinely love all of the adults involved in her life. Although she “seemed a little confused”
when Hudson first asked her about Alvernon, “once she realized who [he] was talking about, she
had nothing but good things to say about him.” R.W. also told Hudson that she liked her current
custody arrangement. She liked visiting and playing with all of the parties, and she liked having
two mothers and three fathers. (We note that at the hearing, Pat explained that R.W. called Susan
and Travia “Mama Sue” and “Mama Shay” and that she referred to Raphael and Chuck as “Big
Daddy” and “Little Daddy.” Although R.W. usually referred to Alvernon by his name, she
sometimes called him “Dad.”)
¶ 23 Hudson opined that Susan and Alvernon were capable of communicating with each other
concerning R.W.’s best interests and cooperating to care for her. He noted that Alvernon told
him that once he got to know Susan, he developed a good relationship with her and trusted her to
do what was right for R.W. Alvernon also acknowledged to Hudson that moving R.W. to Kansas
City with him would not be in R.W.’s best interests. He told Hudson that he believed she should
to continue live with Susan.
¶ 24 Hudson recommended that Susan continue to have the majority of parenting time with
R.W. and that each of the parties be given some parenting time. He believed that it would be
confusing to R.W. to have overnight parenting time with Alvernon at this time, but he
recommended that Alvernon’s parenting time gradually be increased to include overnight visits.
Hudson had reservations about awarding significant amounts of parenting time to Travia and
Raphael, however. He indicated that unlike Alvernon, neither Travia nor Raphael had taken
advantage of all the parenting time scheduled for them in the court’s temporary order. He was
also concerned because there was a lot of crime in the neighborhood where they both lived.
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Hudson also believed that R.W. should have time to enjoy her extracurricular activities, many of
which were scheduled on weekends. He explained that R.W. needed to have “the chance to be a
child without worrying about her visitation schedule.”
¶ 25 The court held a hearing over two days in June 2017. The court heard extensive
testimony from Susan, Pat, Travia, Raphael, Alvernon, and GAL Dustin Hudson. Hudson’s
testimony essentially repeated what he wrote in his report.
¶ 26 Pat testified that she had a great relationship with R.W., who called her “Gamma.” She
testified that she knew that R.W. loved Raphael and Chuck. Although she was not sure how
R.W. felt about Alvernon, R.W. seemed to enjoy her visits with him and looked forward to
seeing him. She noted that R.W. especially looked forward to getting to see Alvernon’s young
son, O.W., and that she seemed to have more of a relationship with O.W. than she had with
Travia’s children. Pat testified that Alvernon and his girlfriend, Mia, were always very pleasant
during their visits.
¶ 27 Susan testified that when she first met R.W., Raphael told her that he was caring for his
sister’s baby because his sister was unable to do so. She testified that before these proceedings
began, she thought that she and Raphael were “pretty good partners” in raising R.W. Susan
acknowledged that when Alvernon began making an effort to be a part of R.W.’s life, she was
concerned because she did not know anything about him. However, she testified that Alvernon
and Mia were always kind and pleasant during their scheduled visits. Asked to describe those
visits, Susan replied, “They spend good quality time together. I see it as good quality time. He’s
very interactive with her. And he seems to care about her.” Susan testified that she believed
Raphael, Travia, and Alvernon should all be involved in R.W.’s life in some manner, but she did
not know how.
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¶ 28 Raphael testified that since these proceedings began, he saw less of R.W. than he used to,
and he missed her. He believed that Susan should continue to be a part of R.W.’s life because
“she’s been there the whole time.” Asked how R.W.’s time should be divided among the four
parties, Raphael said, “I just would like the best for her. *** I would like for it to go back to the
way it was because *** there was no problems.” He admitted that it would be hard for him to
trust Susan again, explaining that he felt betrayed when she filed the petition to initiate these
proceedings without consulting him. However, he hoped that things could go back to the way
they were before these proceedings began because he and Susan used to cooperate in caring for
R.W. He explained that he, Susan, and Pat had created a family for R.W.
¶ 29 Raphael testified about the relationship between Travia and Susan. He noted that he had
discussions with Susan about Travia’s parenting on “a couple” of occasions. He explained that
when Travia wanted overnight visits with R.W., Susan had some concerns about Travia’s home.
He testified that in order to smooth things over between Susan and Travia, he tried to explain that
“how [Travia] raises her kids can be different from how [he] and Susan [were] raising [R.W.].”
In particular, he had to explain to Susan that Travia had to use space heaters to keep her children
warm because she did not have a lot of money. On cross-examination by Susan’s attorney,
Raphael admitted that he shared Susan’s concerns about Travia’s care.
¶ 30 Raphael testified that Travia never asked to have custody of R.W., but she did ask to have
overnight visits. He also testified, however, that there were periods in R.W.’s life during which
Travia showed little interest in spending time with her. He noted that Susan and Travia
sometimes argued over the care Travia provided when R.W. visited her home. According to
Raphael, “Travia would be like, ‘you know, I’m just going to come and get my baby and we can
just leave this alone.’ You know how petty things can get.” He testified that Susan responded to
11
this by telling Travia that she could not do that because Susan and Raphael had been raising
R.W. for five years and that she would move away with R.W. rather than allow that to happen.
Raphael did not believe either Travia or Susan meant what they said during this exchange. Susan
denied ever making the comment.
¶ 31 Travia testified that she lived with her six other children. She had five children who were
older than R.W. and a nine-month-old baby. Travia testified that Susan made the comment about
wanting to move out of state with R.W., but her account was different from Raphael’s.
According to Travia, when Susan and Raphael confronted her about her unilateral decision to
allow R.W. to visit with Alvernon, she admitted that she too was worried that he might try to
take R.W. back to Kansas City. She told them that she decided she just had to trust him and that
she knew that if he did take R.W. to Kansas City, Susan would go and bring her back. Travia
claimed that in response to this, Susan told Travia she was right and said that she would move
out of state with R.W. rather than allow Alvernon to take her to Kansas City. Travia
acknowledged that she never asked Raphael or Susan to return R.W. to her custody. She
explained that she did not feel “like it was fair to [R.W.] to just step in and rip her out of all of
their lives, so I did what I could to try to come together with them to parent her as one.”
¶ 32 Alvernon testified that at the time of the hearing, he lived in Kansas City with Mia and
O.W., but his parents and siblings lived in the St. Louis area. He testified that he intended to
move back to the area in order to be able to spend more time with R.W. He noted that he had
found a place to live and that he and Mia were both looking for jobs.
¶ 33 Alvernon testified that he felt “vindicated” when he was notified of the parentage
proceedings in Missouri. Once it was determined that he was R.W.’s father, he asked to see her
right away. He visited with R.W. at the beginning of July 2016, before these proceedings were
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initiated. After that visit, Alvernon asked Travia to work out a visitation schedule. He testified
that she initially asked him to visit every weekend, which he agreed to do, but she stopped
returning his phone calls. Alvernon assumed that R.W. was living with Travia at this time.
¶ 34 Alvernon asked the court to give him sole decision-making authority and parenting time
every weekend. He asked that the majority of parenting time be allocated to either Travia or
Raphael. He acknowledged that he had previously indicated that he wanted Susan to have the
majority of parenting time and that he wanted to share decision-making authority with her.
Asked to explain why he changed his position, he explained that some of the testimony he had
heard during the hearing led him to believe that Susan, Travia, and Raphael conspired to keep
him out of R.W.’s life, and he no longer believed that they had R.W.’s best interests at heart.
¶ 35 At the end of the hearing, the court took the matter under advisement. The court stated on
the record that R.W. was “a well-loved little girl” and that each of the four parties was “capable
of taking care of her and meeting her needs as a child.” The court also stated that all four parties
appeared to want what was best for R.W.
¶ 36 We note that there was also testimony at the hearing that Susan took R.W. on vacations to
Florida, California, and Mexico, among other places, and that she threw elaborate parties for
R.W. for her birthday and holidays. Both Travia and Raphael expressed concern at the hearing
that they did not want this case to be decided by what Susan could afford to provide for R.W. We
have not discussed this testimony in any detail in this opinion because we do not believe it
played a significant role in the court’s decision, and it plays no role in our decision. This decision
turns instead on the nature of the relationships that have been established between R.W. and the
adults in her life.
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¶ 37 On July 5, 2017, the court entered a parenting order. The court first expressly found that
Susan “has overcome the presumption of the superior right of a parent to have custody over a
non-parent.” The court further found that it would be in R.W.’s best interests for Susan to be
given the majority of parenting time with R.W. and sole decision-making responsibility. The
court noted that it did not believe it was possible for any of the parties to cooperate in making
decisions due to their strained relationships.
¶ 38 In support of these conclusions, the court made the following findings of fact: Neither
Travia nor Alvernon was involved in making any decisions concerning R.W.’s welfare since
Travia relinquished custody of R.W. to Raphael in October 2011. Travia was involved in R.W.’s
life “sporadically,” but she never requested that custody be returned to her, and Alvernon did not
attempt to be a part of R.W.’s life until after the Missouri court determined that he was her
biological father in 2016. Susan and Raphael shared in the responsibility of caring for R.W., but
Raphael was not always able to provide this care on a full-time basis due to health concerns.
Susan and Raphael also shared in the responsibility of making decisions for R.W., although
Susan took most of the initiative in making those decisions.
¶ 39 The court then set forth a parenting schedule allocating parenting time on Wednesday
afternoons to Raphael and dividing parenting time on the second weekend of each month
between Alvernon and Travia. The court acknowledged that this was less time than is ordinarily
allocated, but the court noted that it would be impossible to allocate parenting time according to
a “standard schedule” in light of the fact that four different individuals wanted to have parenting
time with R.W. The schedule did not give Alvernon or Travia overnight parenting time for the
first several months, but it increased their parenting time to include overnight visits beginning in
2018. Alvernon’s parenting time was to increase further beginning in 2019.
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¶ 40 On August 4, 2017, Alvernon filed a motion to set aside the parenting order. He noted
that no party presented any evidence showing that he was an unfit parent and that the court did
not find him to be unfit. He argued that absent such a finding, a court may not “infringe upon the
fundamental right of a parent to make childrearing decisions” without running afoul of the due
process clause of the fifth amendment to the United States Constitution.
¶ 41 On September 6, 2017, prior to holding any additional hearings in the matter, the court
entered an order making what it called “additional findings of fact.” The court found both Travia
and Alvernon to be unfit parents. It found Alvernon to be unfit because (1) he failed to
demonstrate a reasonable degree of interest, concern, or responsibility for R.W.’s welfare (see
750 ILCS 50/1(D)(b) (West 2016)), (2) he evidenced an intent to forego his parental rights for a
period of 12 months before these proceedings began (see id. § 1(D)(n)(1)), (3) he did not file an
action to establish parentage within 30 days of being informed that he was likely R.W.’s father
(see id. § 1(D)(n)(2)(i)), and (4) he did not make a good faith effort to pay child support until he
was ordered to do so (see id. § 1(D)(n)(2)(ii)).
¶ 42 On September 11, 2017, Alvernon’s motion came before the court for a scheduled
hearing. At the outset, the court noted that after it entered its initial order and Alvernon filed his
motion to set that order aside, it “entered an additional order.” The court then stated:
“And let me preface reading that order with when I heard this case and when I typed up
the [original] order it was my sincere hope that these parties could continue to get along
with one another ***. I’m smart enough to know when you start throwing around terms
like unfit parents, people get their feelings hurt. And I was trying to avoid people having
their feelings hurt because I do believe *** that Mr. [W.], Ms. [B.], and Mr. Hall should
all continue to play a part in [R.W.’s] life.”
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The court then read the September 6 order into the record.
¶ 43 Alvernon’s attorney asked for a continuance to give him time to respond to the findings
in the new order, noting that he did not see a copy of the order until that morning. Susan’s
attorney opposed his request, arguing that the findings in the order did not “substantively change
[Alvernon’s] argument.” The court denied the request for a continuance. Then, without giving
the parties an opportunity to present evidence or arguments, the court stated, “and I’m going to
deny your request to set aside the July 5, 2017, order.” The court went on to state, “I will tell you
that I probably should have put the findings of unfitness in the July 5 order, but again I really
wanted to try and tap lightly or walk lightly with regard to these people’s interactions and
relationships with each other.”
¶ 44 The same day, the court entered an order denying Alvernon’s motion to set aside its
earlier order. Alvernon timely filed this appeal. Neither Raphael nor Travia has appealed the trial
court’s rulings.
¶ 45 Alvernon first argues that the court erred in finding him to be an unfit parent, both
because no party alleged that he was unfit and because the court’s finding was against the
manifest weight of the evidence. Susan filed a motion to strike the portions of his brief raising
these claims, arguing this court does not have jurisdiction to consider those arguments because
Alvernon’s notice of appeal did not specifically identify the court’s September 6, 2017, order.
We ordered her motion to be taken with the case. For the following reasons, we now deny that
motion.
¶ 46 Filing a notice of appeal is a necessary step to confer appellate jurisdiction. General
Motors Corp. v. Pappas, 242 Ill. 2d 163, 176 (2011). Illinois Supreme Court Rule 303(b)(2)
provides that a notice of appeal “shall specify the judgment or part thereof or other orders
16
appealed from and the relief sought.” (Emphasis added.) Ill. S. Ct. R. 303(b)(2) (eff. Jan. 1,
2015). Once a notice of appeal is filed, the trial court loses jurisdiction to consider the
judgments, orders, or portions of judgments specified in the notice, and those matters proceed to
the appeals court, “not as a new case but as a continuation of the case in the trial court.” Burtell
v. First Charter Service Corp., 76 Ill. 2d 427, 433 (1979) (citing Wolcott v. Village of Lombard,
387 Ill. 621, 624 (1944)). The notice of appeal thus confers jurisdiction of the appellate court to
consider the judgments, parts thereof, or orders specified. Id. The notice of appeal also serves the
purpose of informing the appellee that the appellant has sought review of the trial court’s rulings.
Id. In light of these dual purposes, an appeals court acquires jurisdiction to consider only those
judgments, parts thereof, or orders specified in the notice of appeal. Id. at 434.
¶ 47 Although we do not have jurisdiction to consider judgments or orders that are not
specified in the notice of appeal, we do have jurisdiction to consider judgments or orders that,
while not explicitly identified in the notice of appeal, may reasonably “be inferred from the
notice as intended to be presented for review on the appeal.” Id. It is reasonable to infer from a
notice of appeal that the appellant seeks review of unspecified orders if they “directly relate[ ]
back to the judgment[s] or order[s]” that are expressly identified in the notice. Id. Put another
way, an unspecified order is subject to review “if it is a ‘step in the procedural progression
leading’ to the judgment[s] specified in the notice of appeal.” Id. at 435 (quoting Elfman Motors,
Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir. 1977)).
¶ 48 In determining whether we have jurisdiction to review an order that is not explicitly
identified in a notice of appeal, we must also keep in mind that although cases addressing this
question “often speak in terms of jurisdiction, it is generally accepted that a notice of appeal is to
be liberally construed.” Id. at 433. If a notice of appeal, “when considered as a whole, fairly and
17
adequately sets out the judgment complained of and the relief sought so that the successful party
is advised of the nature of the appeal,” it is sufficient to confer appellate jurisdiction. Id. at 433­
34.
¶ 49 As Susan points out, the notice of appeal filed by Alvernon in this case identifies only the
court’s orders of July 5 and September 11, 2017. The notice does not specify the September 6,
2017, order or specifically address the findings contained in the order. Nevertheless, we believe
the order is a procedural step leading to one or both of the judgments that were explicitly
identified in Alvernon’s notice of appeal.
¶ 50 As we discussed earlier, the court entered the order after Alvernon filed a motion arguing
that the court’s July 5, 2017, parenting order must be set aside precisely because it did not
contain findings of unfitness. It thus appears that the court entered the September 6 order
containing these findings because it believed that the findings were necessary to support its
September 11 order denying Alvernon’s motion to set aside the July 5 order. As such, the
September 6 order was a step in the procedural progression that led to the court’s September 11
order, which was explicitly identified in the notice of appeal. As we also discussed earlier, the
court indicated during the motion hearing that it “probably should have put the findings of
unfitness” in its earlier order. This shows that the findings were closely related to the July 5
order, which was also explicitly identified in Alvernon’s notice of appeal.
¶ 51 We note that the September 6 order, which contained only findings of fact and did not
direct any party to take any action, would not have been appealable in its own right. See id. at
436. We also emphasize that Susan was not misled or confused by Alvernon’s notice of appeal.
She in fact responded to his arguments. See id. In light of these facts and in light of the close
relationship between the three orders, we believe that review of the September 6 order may fairly
18
be inferred from the notice of appeal. We therefore deny Susan’s motion to strike, and we turn
our attention to Alvernon’s arguments concerning the court’s findings of unfitness.
¶ 52 Alvernon first argues that the court erred in finding him to be an unfit parent because no
party alleged that he was unfit. We agree.
¶ 53 We note that our research has uncovered no Illinois cases involving findings of unfitness
outside the context of proceedings to terminate parental rights. In termination proceedings, the
petition to terminate must contain an allegation that the parent is unfit and must also allege the
specific statutory grounds for finding the parent to be unfit. A court may not terminate parental
rights on grounds that are not alleged in the petition. In re Michael M., 364 Ill. App. 3d 598, 609
(2006) (citing In re D.C., 209 Ill. 2d 287, 295-96 (2004)). The court may not terminate parental
rights unless it finds the parent to be unfit by clear and convincing evidence. Douglas R.S. v.
Jennifer A.S., 2012 IL App (5th) 110321, ¶ 5. Termination of parental rights is a two-step
process. The court first holds a fitness hearing where the State or other petitioner must prove the
parent is unfit by clear and convincing evidence. Id. If the court makes this finding, the case then
proceeds to a best interest hearing at which the petitioner must show that termination is in the
child’s best interests by a preponderance of the evidence. Id.
¶ 54 Here, of course, Alvernon’s parental rights were not terminated. Susan argues that this
distinction makes the rules we have just discussed inapplicable to the case before us. She points
out that in determining the best interest of the child, a court must consider “an extensive list of
statutory factors, including ‘any other factor that the court expressly finds to be relevant.’ ” See
750 ILCS 5/602.7(b)(17) (West 2016). She argues that the court’s findings of parental unfitness
contained in the order of September 6, 2017, are nothing more than “any other factor” the court
found relevant. We are not persuaded.
19
¶ 55 We recognize that there is a significant difference between a termination case and a case
involving the allocation of parenting time. The latter does not permanently sever the parent-child
relationship and all the rights that go with it, while the former clearly does. See In re Petition to
Adopt Shuman, 22 Ill. App. 3d 151, 153 (1974) (making this observation in an adoption
proceeding). However, a judicial determination of parental unfitness cannot be treated as any
other finding of fact relevant to a child’s best interests due to the potentially dire consequences
that can flow from such a determination. As we have explained, once a finding of unfitness has
been made, parental rights can thereafter be terminated if a petitioner can show by a
preponderance of the evidence that doing so is in the child’s best interest. Douglas R.S., 2012 IL
App (5th) 110321, ¶ 5. This is obviously a much lower burden than the clear and convincing
evidence required to find the parent unfit. Thus, we find that the protections applicable to
findings of unfitness in termination cases are applicable to any finding of parental unfitness—
assuming it is ever appropriate to enter such findings in cases where termination of parental
rights is not at issue.
¶ 56 In termination cases, the fitness hearing and the best interests hearing are conducted
separately for two reasons. First, as we have already explained, the standard of proof required at
each of the hearings is different. Id. Second, “[b]ecause the focus of the two hearings is different,
and each has differing purposes, evidence that is admissible at one hearing may not be
admissible at the other.” Id. (citing In re D.L., 191 Ill. 2d 1, 10-13 (2000)).
¶ 57 Here, the court held one hearing, which was focused solely on R.W.’s best interests.
Alvernon had no notice that the court intended to make a finding of unfitness. The court entered
the order finding Travia and Alvernon to be unfit without holding an additional hearing focused
on the issue of their fitness as parents. At the scheduled hearing on Alvernon’s motion to set
20
aside the parenting order, the court did not allow him to present any evidence or arguments
addressing the finding of unfitness. The order does not even expressly state that its findings are
supported by clear and convincing evidence. To allow a judicial determination of parental
unfitness to stand under such circumstances would be untenable. We hold that a court may not
make findings of parental unfitness absent an allegation of unfitness regardless of whether
parental rights are sought to be terminated. We also note that one of the statutory grounds relied
upon by the court—failure to pay support for the child—is only available if a petition to
terminate parental rights is filed by the child’s mother or her husband. 750 ILCS 50/1(D)(n)
(West 2016). The order containing unrequested findings of unfitness must therefore be vacated.
¶ 58 Because we have concluded that the court erred by entering an order finding the parents
to be unfit when no party alleged them to be unfit, we need not address Alvernon’s contention
that the findings were against the manifest weight of the evidence. We note in passing, however,
that the findings of unfitness were inconsistent with statements the court made at the hearing. As
we discussed earlier, the court explicitly stated on the record that each of the four parties loved
R.W. and had the ability to care for her and meet her needs.
¶ 59 Finally, Alvernon argues that the court erred in awarding Susan sole decision-making
authority and the majority of parenting time. We note that he does not argue that the findings in
the July 5 parenting order were against the manifest weight of the evidence or that the court
abused its discretion. See In re Marriage of Dafoe, 324 Ill. App. 3d 254, 259 (2001). Instead, he
contends that the court erred as a matter of law because it failed to give any weight to his
fundamental constitutional rights as a parent. We disagree.
¶ 60 Alvernon is correct in asserting that “it is beyond dispute” that the right of parents to the
custody and care of their children is a fundamental liberty interest protected by the due process
21
clause of the fifth amendment. Troxel v. Granville, 530 U.S. 57, 65 (2000). It is presumed that a
fit parent will act in the best interest of his child. Id. at 68. Thus, “there is a well-established
presumption” that a fit parent has a right to the care and custody of his child that is superior to
the right claimed by any other party. In re Marriage of Dafoe, 324 Ill. App. 3d at 259 (citing
In re Custody of Townsend, 86 Ill. 2d 502, 508 (1981)). This presumption, however, is not
absolute. Id. A nonparent seeking to retain custody of a child in her care “must demonstrate good
cause” to overcome the presumption of a parent’s superior right. She must also show that
retaining custody would be in the child’s best interest. Id. (citing In re Adoption of E.L., 315 Ill.
App. 3d 137, 158 (2000)). Once the presumption has been overcome, a court may award custody
to a nonparent without finding that the parents are unfit. Id.
¶ 61 This is because courts have long recognized that “ ‘Parental rights do not spring full-
blown from the biological connection between parent and child. They require relationships more
enduring.’ ” (Emphasis omitted.) Lehr v. Robertson, 463 U.S. 248, 260 (1983) (quoting Caban v.
Mohammed, 441 U.S. 380, 397 (1979)). The nature of these enduring relationships plays a
crucial role in determining whether there is good cause to overcome the presumption of a
parent’s superior right to custody.
¶ 62 We find guidance in the Illinois Supreme Court’s analysis in the case of In re Parentage
of J.W., 2013 IL 114817. That case, like this case, involved a determination of paternity several
years after the child was born. Id. ¶¶ 4-6. We note that despite this similarity, the case is not
precisely analogous to the case before us. There, the child was in the custody of her biological
mother (id. ¶ 4), and the question was not whether a nonparent was entitled to the majority of
parenting time, but whether the biological father was entitled to any parenting time (id. ¶ 1).
22
Nevertheless, the supreme court’s observations concerning the importance of evaluating a child’s
existing emotional bonds are pertinent in this context as well.
¶ 63 There, the child’s mother became pregnant after a one-time encounter with the father,
Steve. She apparently assumed that the baby’s father was her boyfriend, Jason. Id. ¶ 4. Jason
signed a voluntary acknowledgement of paternity and was listed as the child’s father on her birth
certificate. Id. The mother later married Jason, but they subsequently divorced. Id. ¶ 5. Steve saw
photographs of the child on the mother’s social media site. He thought he saw a familial
resemblance, so he contacted the mother to discuss the possibility that he was the child’s
biological father. Id. ¶ 6. DNA testing revealed that Steve was, in fact, J.W.’s biological father.
Id. Steve subsequently filed a petition to establish the existence of a parent-child relationship and
requested parenting time (then called visitation). Id. ¶ 8.
¶ 64 The trial court determined that Steve bore the burden of proving that it would be in the
child’s best interest for him to be given any parenting time. Id. ¶ 23. The court noted that J.W.
“identified Jason as her father because of their long-standing loving relationship” and that J.W.
did not understand Steve’s relationship to her. Id. ¶ 26. The court found that, under these
circumstances, it was not in J.W.’s best interest to introduce Steve into her life, at least not at that
time, and denied his request for parenting time. Id. ¶¶ 26, 28. In reaching this conclusion, the
trial court found that a presumption that it is in a child’s best interest to have parenting time with
a noncustodial parent was not applicable under the facts of that case. Id. ¶ 27.
¶ 65 The appellate court reversed, finding that it is presumptively in a child’s best interest for
a noncustodial parent to have parenting time. Id. ¶ 30. The court held that Steve, as the biological
father, was entitled to reasonable parenting time unless the evidence showed that this “would
seriously endanger” the child’s health or well-being. Id. ¶ 32.
23
¶ 66 The supreme court disagreed with both the trial court and the appellate court about the
application of the presumption in favor of awarding parenting time to the noncustodial parent. Id.
¶ 52. The supreme court explained that this presumption “reflects a legislative recognition of the
need to protect the preexisting parent-child bond that presumably developed prior to the divorce
or separation of two parents.” (Emphasis added.) Id. ¶ 47. The court noted that the presumption
in favor of visitation may not accurately reflect the actual circumstances of children in custody
disputes that arise outside of the typical dissolution setting. This is particularly true in cases
“where paternity is established long after birth.” Id. ¶ 48. In such cases, the court explained, the
biological father is seeking parenting time when “a relationship with the child may not have ever
been forged.” (Emphasis added.) Id.
¶ 67 The supreme court concluded that although the presumption in favor of awarding
parenting time to both parents is indeed applicable in a parentage case, that presumption can be
overcome with evidence that parenting time is not in the child’s best interest without meeting the
“more onerous ‘serious endangerment’ standard” that is applicable in dissolution cases. Id. ¶ 52.
The court also held that the noncustodial father in a parentage case has the burden of
demonstrating that parenting time will be in the child’s best interest. Id. ¶ 53. The court then
went on to find that, in light of the child’s lack of any meaningful relationship with Steve, the
evidence supported the trial court’s determination that parenting time was not in her best
interests at that time. Id. ¶¶ 55-59.
¶ 68 Similar concerns arise in cases in which courts must determine whether a nonparent has
overcome the presumption that a biological parent has a superior right to the care and custody of
his child. In In re Marriage of Dafoe, this court considered the nature of a child’s existing bonds
with both his biological parents and his actual caregivers in addressing that very question.
24
¶ 69 There, the child’s biological parents divorced when he was an infant, and the father had
minimal contact with his son for the next five years. In re Marriage of Dafoe, 324 Ill. App. 3d at
255-56. Sole custody was awarded to the mother in the dissolution proceedings. Soon thereafter,
she and the child moved in with her parents. Id. at 255. Three years later, the mother moved to
Texas, leaving the child in Illinois in the care of her parents. After two more years passed, the
father requested custody. Id. at 256. By this point, the six-year-old child had lived with his
grandparents for five years, and they had been his primary caregivers for two years. The trial
court found that the grandparents had shown good cause to overcome the presumption of the
father’s superior right to custody. Id. at 256-57.
¶ 70 In upholding the trial court’s findings, this court emphasized that “The grandparents have
cared for Nicholas virtually all of his life. Nicholas has bonded with them and expressed his
desire to stay with them.” Id. at 261. We concluded that “The biological bond between father and
son simply does not overcome the actual, developed relationship between Nicholas and his
grandparents.” (Emphasis added.) Id. Other districts of the Illinois Appellate Court have likewise
upheld awards of custody or primary parenting time to nonparents who have established
enduring bonds with children that have been in their care. See, e.g., Young v. Herman, 2018 IL
App (4th) 170001 (upholding a trial court’s award of custody to grandparents who had cared for
the child for most of her life); In re Custody of T.W., 365 Ill. App. 3d 1075 (2006) (same).
¶ 71 In this case, as in the Dafoe case, the court did consider the presumption of superior
rights that flows from Alvernon’s biological relationship to R.W. As we stated earlier, the court
expressly found that Susan had overcome this presumption. The evidence supports this finding.
Susan has taken on the lion’s share of the responsibility both for providing R.W.’s day-to-day
care and for making decisions about her schooling, activities, and medical care. Before these
25
proceedings began, R.W. established close emotional bonds to most of the adults involved in this
case—Susan, Pat, Raphael, Chuck, and Travia. As Alvernon recognized in the proceedings
before the trial court, R.W.’s bonds with Susan and the other adults in her life were forged before
he reentered R.W.’s life in the summer of 2016. Although R.W. loved all the adults in her life,
she considered Susan’s home to be her home. The court emphasized R.W.’s need for stability in
finding that Susan should continue to have primary parenting time. This evidence was sufficient
to show good cause to overcome the presumption of the parents’ superior rights.
¶ 72 We note that Alvernon did not request the majority of parenting time at trial. On appeal,
he argues that he should be allowed to determine with whom his daughter associates. It is not
clear whether this argument means that he wants the right to determine that R.W. should no
longer associate with Susan at all, in spite of their deep bond, or simply that he believes the
decision-making authority granted to Susan should instead be granted to him. In either case, we
do not find his argument persuasive. His argument is based on Troxel and Lulay v. Lulay, 193 Ill.
2d 455 (2000). Both of those cases involved court-ordered grandparent visitation against the
wishes of custodial parents. Troxel, 530 U.S. at 69; Lulay, 193 Ill. 2d at 457-58. This court has
previously found both cases to be inapplicable in the context of a custody dispute between
parents and the actual caregivers “who virtually raised the child.” In re Marriage of Dafoe, 324
Ill. App. 3d at 258. We likewise find them to be inapplicable here.
¶ 73 Susan has shown good cause to overcome the presumption of Alvernon’s superior rights
as a parent, and the evidence supports the court’s conclusion that it is in R.W.’s best interests for
Susan to have all of the decision-making authority and most of the parenting time. Thus, the
court’s allocation of parenting time and parental responsibility does not violate Alvernon’s
fundamental rights, and we affirm the initial parenting order and the order denying Alvernon’s
26
motion to set it aside. However, for the reasons discussed earlier, we vacate the order finding
Alvernon and Travia to be unfit.
¶ 74 Judgment affirmed; order containing findings of unfitness vacated; motion to strike
denied.
27
2018 IL App (5th) 170377 NO. 5-17-0377
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
In re CUSTODY OF R.W. )
(Susan Gregory, ) Appeal from the
) Circuit Court of
Petitioner-Appellee, ) St. Clair County.
)
v. )
)
Travia B. and )
Alvernon W., )
) No. 16-F-500
Respondents )
) Honorable
(Alvernon W., Respondent-Appellant; ) Patricia H. Kievlan,
Raphael Hall, Intervenor)). ) Judge, presiding.
________________________________________________________________________
Opinion Filed: February 28, 2018
________________________________________________________________________
Justices: Honorable Melissa A. Chapman, J.
Honorable Richard P. Goldenhersh, J., and
Honorable Judy L. Cates, J.,
Concur
________________________________________________________________________
Attorney Andrew Mossman, Cordell & Cordell, P.C., 100 West Main Street,
for 2nd Floor, Belleville, IL 62220
Appellant
________________________________________________________________________
Attorney Heather Wescoat Dabler, The Law Offices of Susan Parnell Wilson,
for 14 South Second Street, Belleville, IL 62220
Appellee
________________________________________________________________________